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MIAMI UNIVERSITY — THE GRADUATE SCHOOL

CERTIFICATE FOR APPROVING THE DISSERTATION

We hereby approve the Dissertation

Mark Howard Morris

Candidate for the Degree

Doctor of Philosophy

Dr. Ryan J. Barilleaux, Director

Dr. Augustus J. Jones, Jr., Reader

Dr. Douglas H. Shumavon, Reader

Dr. Robert V. Friedenberg, Graduate School Representative ABSTRACT

PRESIDENTIAL PARDON POWER: DISCRETION, DISUSE, AND MASS MEDIA COVERAGE

by Mark Howard Morris

Despite a constitutional foundation and relatively active use until recent years, presidential pardon power remains a little studied and poorly understood executive power. This dissertation seeks to partially remedy this void in the literature with a systematic analysis of the power to pardon. In addition, presidential pardon power has fallen into a state of near disuse in the last two decades. Can factors be identified that explain this trend towards disuse of presidential pardon power? Might these or similar factors then have the potential of affecting the use of other presidential powers? Put another way, are the factors influencing the use or disuse of the pardon power transferable to other presidential powers?

PRESIDENTIAL PARDON POWER:

DISCRETION, DISUSE, AND MASS MEDIA COVERAGE

A DISSERTATION

Submitted to the Faculty of Miami University in partial fulfillment of the requirements for the degree of Doctor of Philosophy Department of Political Science

Mark Howard Morris Miami University Oxford, Ohio 2004

Dissertation Director: Dr. Ryan J. Barilleaux TABLE OF CONTENTS

Acknowledgements iv 1 Introduction 1 2 Scholarship 8 3 Research Question and Methodology 27 4 Historical Developments and Evolution 35 5 Administrative Rules and Procedures 45 6 Case Studies: Richard Nixon and Marc Rich 78 7 Conclusion 108

Appendices: 117 Appendix 1 – Pardons and Commutations: 1900-2001 Appendix 2 – List of Pardon Attorneys Appendix 3 – U.S. Attorneys’ Manual Appendix 4 – Executive Grant of Clemency – Roger Clinton Appendix 5 – Pardon Proclamation (Nixon) Appendix 6 – Transcript of Ford’s Pardon Appendix 7 – Nixon Pardon Articles and Classification Appendix 8 – Rich Pardon Articles and Classification Appendix 9 – Pardon Petition After Completion of Sentence

Bibliography 155 Legal Cases 165

List of Tables: Table 1: Top 20 Annual Pardon & Clemency Petitions Submitted Table 2: Pardon Grants During First Three Years of Presidency

List of Figures: Figure 1: Pardons & Commutations by President (1900-2001) Figure 2: Pardon & Commutation Petitions Submitted (1900-2001) Figure 3: Annual Pardon & Commutation Petitions (1967-2001)

To my wife Karen, and my daughters Melissa and Emily, who never asked why, but instead gave freely of their love. Thank you.

iii ACKNOWLEDGEMENTS

The journey to this page has been a long and winding one. With over two decades between my undergraduate degree and this one, it is nearly impossible to name all those to whom I owe debts of gratitude. So I will begin with those large institutions that have shaped me into who I am today. I am very grateful for my years at Michigan State University. For many reasons, it is much more than an alma mater to me. I spent ten years at Citibank where I was privileged to work with some of the most talented people I have ever known. San Francisco State University provided a challenging environment for me to rekindle my interest in learning.

Dr. Ryan J. Barilleaux has patiently served as the Chair of this dissertation. His guidance, enthusiasm, and support helped me finish when it would have been easier to walk away. I thank him for his professional assistance but even more for his friendship. I want to also express my gratitude to the other members of the committee, Dr. Augustus J. Jones, Jr., Dr. Douglas H. Shumavon, and Dr. Robert V. Friedenberg who gave of their time to assist me.

Not unlike Michigan State, Miami University has become a special place for me where I have grown academically, professionally, and personally. The faculty of the Department of Political Science made me feel welcome, challenged my abilities, and supported my interests. Thanks Dotti for all you did. As important to me has been the friendships that have developed in the close confines of my graduate education. Thanks to Jody Baumgartner for shared research, computer assistance, and friendly encouragement. Thanks to Kevan Yenerall, who inspires with both his words and his actions. Thanks to Mark Sachleben for being not only a great friend but also for convincing me that I could complete this project. And thanks to Chris Kelley for his passion for knowledge, his kind support, and especially his humor.

In the process of pursuing this degree, I met Dr. Philip A. Russo, Jr. Phil is not only the best classroom professor I have ever seen, he is also the best boss I have ever worked for. I thank him for his professional guidance, his trust and confidence in me, and his friendship. Working in an office of three, you get to know your co-workers quite well. I feel fortunate to work with two great iv people. Lori Libby is a supportive co-worker and the Center’s institutional memory. I want to thank her for generously sharing her time and experience with me over the years. Andrew Dudas took me on as his shadow in my initial months at the CPMRA. Over the course of time, he has become a valued and trusted friend. The measure of Andrew is that I could call him at any time day or night, and he would simply ask, “How can I help?” Thank you.

I have been blessed with an amazingly large and supportive circle of friends. The Fairfield Flippers swim team provides fun, entertainment, and friendship. The Ice Mongrels make every day an “ice” day. I am humbled to be a part of a wonderful community of faith at JWUMC. Thanks for your prayers and support over all of the years.

Then, there is my family. I wish my Dad were here to see me finish this dissertation. Because he is not, I am proud that our names are together on the title page. I thank my Mom for loving me without question. I have learned much about life from my grandparents. Your number one grandson can never thank you all enough. My siblings have always had more faith in me than I did in myself. No one could have better in-laws than I do. Tony, thanks for leading me across Montana and for not letting the miles diminish our friendship.

I am not sure how to thank these last three people. They willingly packed up and moved across the country so I could pursue my education. There were too many weekends where they would “disappear” so I could read, write a paper, or study for comps. My wife Karen and daughters Melissa and Emily have earned this degree with me. Thank you for the smiles, hugs, notes, and especially your love. None of this would matter without the three of you to share it with.

1 INTRODUCTION

The United States Constitution confers upon the president a variety of responsibilities and powers. For example, the formal powers granted to the president make him the commander in chief, allow him to veto legislation, to make treaties (with the consent of the Senate) and to appoint federal judges. Much has been written about the use of these types of executive power. Until recently, one additional constitutionally authorized executive power has drawn little attention from either scholars or the public, the executive power to pardon. Article II, Section 2 of the Constitution states in part, "The President…shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." Despite its constitutional foundation and its relatively active use, the pardon power remains a little studied and poorly understood executive power. This dissertation seeks to partially remedy this void in the presidential literature. Like many fields of scholarly study, U.S. presidential scholarship has evolved over an extended period of time. The initial focus of presidential scholarship was often historically based and concentrated on the formal or constitutional powers of the president. In the early 1960s, scholarly attention shifted to a broader view of the presidency that included informal powers of the office. This expanded view of the presidency is often credited to the groundbreaking work of Richard Neustadt and his “modern” presidency arguments.1 This study will use a combined approach that requires us to

1 Neustadt, Richard E. 1960, 1980, 1990. Presidential Power and the Modern Presidents. New York: The Free Press.

consider the interaction between both formal and informal powers of the president. If other scholars have yet to show any interest in executive pardons, why make it the focus of this dissertation? I suggest there are four compelling reasons for this specific analysis and a more general academic interest in the executive pardon power itself. First, it offers us a chance to systematically consider a presidential power that is little studied and poorly understood. The presidential literature provides little insight into the development and use of the pardon power. Only the high profile pardon of President Nixon in 1974 drew any significant attention from scholars. This lack of scholarly attention is most notable when speculation about a potential presidential pardon arises. For example, the Iran-contra scandal during the Reagan presidency led to much speculation that Oliver North would receive a presidential pardon. There was also speculation that President Clinton might pardon his wife Hillary Rodham Clinton for her involvement in the Whitewater scandal. Both of these potential pardons (neither came to fruition) attracted media but not scholarly attention. We might now expect an increase in scholarly interest in the pardon, particularly since the highly controversial pardon of Marc Rich by President Clinton as he left office in January 2001. Evaluating the appropriateness of executive actions such as the pardon is difficult if not foolhardy without a full understanding of this unique presidential power. This seems to suggest that a scholarly study is both appropriate and necessary. Second, as will be shown later in this study, executive pardon power has fallen into a state of near disuse in the last two decades. If factors can be identified that explain this trend toward pardon disuse, might these or similar

factors have the potential of affecting the use of other presidential powers? Put another way, are the factors influencing the use or disuse of the pardon power transferable to other presidential powers? This leads us to consider the broad questions of presidential influence, power, and discretion. While it has been argued that the modern presidency has experienced a great expansion of power since World War II,2 the declining use of the pardon may provide one example of the emergence of a countervailing force to this expansion. Third, presidential pardons are acts of administrative discretion. Not only are pardons discretionary, they are typically granted outside the view of the public. This combination of discretion and relative public unawareness creates a very real opportunity for capricious or arbitrary decision-making. "Pardons are potentially too dangerous, too destructive of trust and justice, to be left to a President's whim."3 Even in an environment of declining use of the pardon power, we might want to consider limitations or controls that might be used to monitor and influence the use of this seemingly unlimited discretionary power. The Marc Rich pardon brought many of these issues to the public’s attention and will be one of the primary case studies in this study. Finally, the system of criminal prosecution and punishment now administered in the United States increasingly reflects a "get tough on crime" approach. For example, mandatory sentencing, three strikes legislation, and truth in sentencing requirements have all made criminal punishment less

2 These two seminal works reshaped the view of presidential power and the “modern” presidency: Rossiter, Clinton L. 1960. The American Presidency, 2nd ed. New York: Harcourt, Brace & World, Inc. and Neustadt, Richard E. 1960, 1980, 1990. Presidential Power and the Modern Presidents. New York: The Free Press.

flexible and thus increased the chance of an inappropriate or unjust sentence. Thus the pardon is declining in use at a time when it might be most needed.4 Within the political arena, the growing reliance on “RIP” or revelation, investigation, and prosecution5 as a non-electoral political strategy to attack partisan opponents, also raises concerns for presidents who use the pardon power. Presidents Reagan, George H.W. Bush, and Clinton each faced the possibility of high profile executive pardons during their tenures in office. Thus understanding not only the pardon power itself, but also the means of controlling its use seems important. This dissertation seeks to provide insights into all of these important issues. While this study provides an overview of executive pardon authority and its development in the United States, its focus is more contemporary. Its primary objective is to identify and explain what factor(s) might explain the rapid and precipitous decline in the granting of presidential pardons and commutations since 1980. This decline is easily discernable through the historical record of presidential pardon and commutation grants. A secondary objective is accomplished through an historical analysis where the development and evolution of the pardon power can be more fully assessed and thus understood. Before moving forward, it is useful to briefly discuss the various types of grants available to the president—pardon, commutation, and amnesty. In one of the few book length analyses of presidential pardon power, W.H. Humbert

3 Moore, Kathleen Dean. 1989. Pardons: Justice, Mercy, and Public Interest. New York: Oxford University Press. 217. 4 Ibid. Pg. viii.

identifies ten types of clemency or pardon available to executives: (1) full pardon, (2) pardon to terminate sentence and restore civil rights, (3) pardon to restore civil rights, (4) conditional pardon, (5) amnesty, (6) amnesty on condition, (7) reprieve, (8) commutation, (9) commutation on condition, and (10) remission of fines and forfeitures.6 These ten types can be consolidated into three general categories. First, pardons (full pardon, pardon to terminate sentence and restore civil rights, pardon to restore civil rights, and conditional pardon) are typically used to remedy acts by individuals against ordinary federal laws. For example, the president may grant a full pardon to an individual that has the effect of relieving the person from any potential, pending, or assigned punishment related to federal criminal, civil, or military crimes. Second, amnesties and amnesties on condition are usually granted to groups rather than individuals. For example, amnesties were granted to large numbers of citizens following the Civil War and the Vietnam War. Third, the final four types (reprieve, commutation, commutation on condition, and remission of fines and forfeitures) can be consolidated as commutations. This variation of the pardon power is used to modify the terms of an individual's already established punishment. An example of a commutation is the reduction of a death penalty sentence to life in prison without parole. Unless otherwise noted, this study does not address amnesties7. For the purposes of

5 Ginsberg, Benjamin and Martin Shefter. 1990. Politics by Other Means. United States: Basic Books. 26. 6 Humbert, W.H. 1941. The Pardoning Power of the President. Washington, D.C.: American Council On Public Affairs. 22. 7 There are numerous works on amnesty available if interested See for example: Baskir & Strauss (1977), Damico (1975), Dorris (1953), or Polner (1972).

this study, the term pardon will include full and conditional pardons as well as commutations unless otherwise specified. This dissertation seeks to provide explanations for a specific presidential decision making process. While definitive conclusions may be elusive, evidence will be presented in support of a general set of conclusions. To that end, this dissertation is organized in the following manner. Chapter Two presents the literature that informs this study. Three key bodies of literature form the basis for this dissertation. Those bodies include the presidential studies literature, the administrative discretion literature, and the mass communications literature. Each body of literature is briefly summarized with an emphasis on those issues that have direct impacts on the underlying theoretical assumptions influencing my research question. Chapter Three identifies the specific hypotheses to be tested in this dissertation. The various data sources and methods used to analyze them are also discussed. Chapter Four provides background by reviewing the presidential pardon in an historical context. The evolutionary development of the pardon power and the debate that surrounded its inclusion in the U.S. Constitution are presented. The important role judicial review has had on presidential pardon power as it has come to be interpreted and used today is also covered in this chapter. Chapter Five begins the hypothesis testing and empirical analysis portion of the dissertation. Both of the process-oriented hypotheses (H1 and

H2) are addressed in this chapter. The focus of this chapter is on the administrative rules and processes that govern the pardon process. The first

set of conclusions regarding the decreasing use of the pardon power is identified in this chapter. Chapter Six moves into presidential pardon case studies. Using two case studies, the study addresses the third hypothesis (H3) of this dissertation. The case studies are the Nixon pardon (granted by President Ford in 1974) and the Marc Rich pardon (granted by President Clinton in 2001). Through these case studies, we can compare and assess some of the components that may influence the presidential decision-making process as it relates to the use of pardon power. Chapter Seven considers all the evidence presented in previous chapters and attempts to make specific inferences and conclusions. Here, the research question is assessed in the light of the findings generated through the testing of multiple hypotheses.

2 SCHOLARSHIP

This dissertation draws upon three distinct bodies of literature. The primary body of literature is the broad category of presidential scholarship. The presidential literature provides the basis by which we view, understand, and study the presidency. The second body of literature comes from the study of administrative discretion. Discretionary scholarship provides varying approaches to identifying, understanding, and evaluating discretionary power. The study of mass communication provides the third and final body of literature for this dissertation. Mass communications literature provides a variety of competing views of the effects and impacts of mass media messages. Importantly is the gatekeeping function of the mass media, which determines which messages are presented. The messages that make it through the gatekeeping function are then subjected to framing. Framing is used to set the context, background, and presentation of the information being presented. This literature review is broad but with a focus on the elements that most directly relate to this dissertation. PRESIDENTIAL SCHOLARSHIP – Like the U.S. presidency itself, the scholarly study of the presidency has evolved over time. Events, experiences, and individuals have altered not only how the presidency functions, but also how scholars and citizens now view the presidency and the president. It is important to make the distinction between the presidency and the president. By “presidency,” I mean not only the individual presidents but also all of the powers, traditions, and people that serve the executive branch of government. In common parlance, the “presidency” as I will use it in this work may be referred to as the Administration or the Executive Office of the 8

President (EOP). By “president,” I mean the individual men who have occupied the office. Thus education, personality, and political experience may be considered important elements with respect to the president as an individual officeholder. The evolution in presidential scholarship led to new approaches to studying the presidency and to new ways of understanding and evaluating the presidency and presidential power. The evolution and the three primary approaches (formal/traditional, modern, and post-modern) that emerged merit a brief review. The early students of presidents and the presidency focused primarily on creating a written historical record. Thus early scholarship is primarily an historical record of each administration, the events of the day, the actions taken, and the men who occupied the office. Analytical study of the presidency during this time, when conducted, was through a constitutional lens that viewed the presidency through its legal-institutional relationships within the U.S. governing system. “The question of the Presidency, its duties, its responsibilities and its limitations, ought perhaps to be settled not in the heat of the issues that constantly arise for the decision of the incumbent, but rather in the careful study from an unbiased standpoint of the historian and the jurist.”8 In this view, presidential powers were those articulated solely by constitutional provisions. These formal powers are found in Article II, Section 2 of the U.S. Constitution and include: commander-in-chief, pardon power, treaty power, and appointment power.

8 Taft, William Howard. 1916. The President and His Powers (originally published under the title Our Chief Magistrate and His Powers). New York: Columbia University Press. 2.

The formal powers or traditional approach to the presidency presented the office as one of specific limits and authority.9 These limits were found in the Constitution. Woodrow Wilson contributed to the formal powers discussions especially as his own view shifted from one of congressional dominance10 to presidential dominance.11 The formal/traditional powers approach to the study of the presidency held until the late 1950s when a new approach began to emerge. The notion of the “modern” presidency is critically important to this work and merits some elaboration. Two important scholarly works would lay the foundation for what would become known as the modern presidency approach. The first was Clinton Rossiter’s The American Presidency (1956), which set the stage for an entirely new approach to studying the presidency. The second was Richard Neustadt’s Presidential Power and the Modern Presidency (1960), which established a new approach and remains a seminal work that continues to influence presidential scholarship. Rossiter was the first to formalize a view of the presidency that included both constitutional (formal) powers12 and extra-constitutional (informal) powers.13 He identifies five formal/constitutional roles of the president. These roles include: Chief of State, Chief Executive, Commander- in-Chief, Chief Diplomat, and Chief Legislator. As Chief of State, the

9 Ibid. 10 Wilson, Woodrow. 1884. Congressional Government: A Study in American Politics. Gloucester, Mass. 11 Wilson, Woodrow. 1908. Constitutional Government in the United States. New York: Columbia University Press. 12 Rossiter, Clinton L. 1960. The American Presidency, 2nd ed. New York: Harcourt, Brace & World, Inc. 16- 30. 13 Ibid. 30-41.

president serves as the ceremonial head of the United States government. As Chief Executive, he is responsible for supervising the day-to-day operations of the executive branch of government. The president is in charge of all military forces in his role as Commander-in-Chief. As the Chief Diplomat, the president holds a paramount role in the realm of international/foreign relations. Finally, as Chief Legislator, the president is intimately involved in all aspects of the legislative process. This five-part categorization served to neatly summarize the formal powers of the presidency and the basis for the formal/traditional approach. More importantly for the future study of the presidency, Rossiter identified five additional roles or functions of the “modern” president. The first was the president as the Chief of Party. In this role, the president is the de facto head of and thus chief spokesperson for his political party. As the Voice of the People, the president is the leading formulator and expounder of public opinion. While the Commander-in-Chief serves as the head of the military, the Protector of the Peace must deal with “the emergencies that can disturb the peace of the United States” that “grow thicker and more vexing every year.14 The challenges of a post-September 11 world may best exemplify this informal yet expected role of the modern president. The fourth role is that of Manager of Prosperity. In this role, the president must manage the economy to avoid depressions, recessions, and financial disasters. Lastly, the president is the World Leader. No longer is the U.S. president serving just the American electorate, but instead has a much larger global constituency.

14 Ibid. 34.

These ten functions: Chief of State, Chief Executive, Commander-in- Chief, Chief Diplomat, Chief Legislator, Chief of Party, Voice of the People, Protector of the Peace, Manager of Prosperity, and World Leader when combined cast the presidency in a new light. Rossiter effectively identified what we now refer to as the “informal” powers of the presidency, or those powers not derived directly from the Constitution yet exercised by each and every president. In doing so, Rossiter began to shift the focus away from the somewhat limited view using only the institutional powers of the office, and instead towards a much broader view adding the informal/personal powers of the individual holding the office. Richard Neustadt would build on Rossiter’s work to create an entirely new approach to presidential studies. In an oft-quoted phrase, Richard Neustadt writes, “Presidential power is the power to persuade.”15 Herein lies Neustadt’s basic argument regarding presidential power. Neustadt argues that the formal powers of the president are useless unless in the hands of a skilled individual willing to use the informal powers of the office. Similar to the argument set forth by Rossiter, Neustadt finds “the White House now controls the most encompassing array of vantage points in the American political system.16 Thus presidential power goes well beyond a simple listing of specific constitutional powers. The notion of a modern presidency generated a significant body of literature as scholars sought to test and understand this new approach. Although Neustadt’s work did not provide a specific definition of the modern presidency, he did identify Franklin Roosevelt as the first “modern” president.

15 Neustadt, Presidential Power. 11. 16 Ibid. 31.

Later works identified four notable characteristics of the modern president: initiating and seeking congressional support for legislation; increased use of unilateral powers such as executive orders; the creation of an extensive bureaucracy to support the president’s agenda; and the personalization of the office of the president.17 As scholars assessed each of these components, we gain insight into the implications of the rhetorical president who uses the bully pulpit to appeal to citizens directly rather than appeal to Congress.18 This direct appeal to the electorate, or going public, is a direct attempt to work around perceived institutional limitations.19 The modern approach led to the development of typologized presidential personalities such as the active/passive – positive/negative presidents.20 This opened up the field to a variety of works evaluating individual presidents including the “hidden hand” presidency of Eisenhower,21 the Bush presidency,22 and an early assessment of the Clinton presidency.23 Although the modern presidency became the dominant approach in the early 1960s, it did not go unchallenged. Peter Sperlich was an early critic and challenged both the over emphasis on the individual as well as the predictive

17 Greenstein, Fred I. 1978. Change and Continuity in the Modern Presidency. In The New American Political System, ed. Anthony King, 45-85. Washington D.C.: American Enterprise Institute. 18 Tulis, Jeffery. 1987. The Rhetorical Presidency. Princeton, NJ: Princeton University Press. 19 Kernell, Samuel. 1997. Going Public: New Strategies in Presidential Leadership, 3rd ed. Washington, D.C.: CQ Press. 20 Barber, James David. 1972. The Presidential Character: Predicting Performance in the White House. Englewoods Cliffs, NJ: Prentice Hall. 21 Greenstein, Fred I. 1982. The hidden-hand presidency: Eisenhower as leader. New York: Basic Books. 22 Barilleaux, Ryan J. and Mary E. Stuckey, eds. 1992. Leadership and the Bush presidency: prudence or drift in an era of change? New York: Praeger. 23 Renshon, Stanley A., ed. 1995. The Clinton Presidency: Campaigning, Governing, & the Psychology of Leadership. Boulder, CO: Westview Press.

nature of Neustadt’s model.24 More recent examples of presidential literature continue to challenge what is seen as the over reliance on the dominance of the informal powers identified by the modern paradigm. For example, Louis Fisher calls attention to the legislative power afforded to the president through the use of the veto power.25 On the other hand, Fisher challenges the expanded use of presidential war making powers as unconstitutional.26 He argues presidential actions now overlook the constitutional power to declare war granted exclusively to Congress. Milkis and Nelson offer an institutional view of the presidency that directly challenges the assertions of the “modern” president.27 Eastland argues for a reassertion of the use of the constitutional powers granted to the president.28 Harkening back to Hamilton, he asserts that the “energy in the executive” is constitutionally, not personally based. Tulis argues that both the formal and informal powers of the president are rooted in the Constitution, and are not new to FDR and presidents that followed.29 In a spirited defense of the constitutional powers of the president, Nichols refutes the notion of a modern president with examples of so-called

24 Sperlich, Peter W. 1969. Bargaining and Overload: An Essay on Presidential Power. In Aaron Wildavsky, ed., Perspectives on the Presidency. Boston: Little, Brown. 25 Fisher, Louis. 1991. Constitutional Conflicts between Congress and the President, 3rd ed. Lawrence, KS: University Press of Kansas. 115-152. 26 Fisher, Louis. 1995. Presidential War Power. Lawrence, KS: University Press of Kansas. 27 Milkis, Sydney M. and Michael Nelson. 1990. The American Presidency: origins and developments, 1776-2002, 4th ed. Washington D.C.: CQ Press. 28 Eastland, Terry. 1992. Energy in the Executive, The Case for the Strong Presidency. New York: The Free Press. 29 Tulis, Jeffrey. 1995 The Two Constitutional Presidencies. In The Presidency and the Political System, 4th ed., ed. Michael Nelson, 91-123. Washington, D.C.: CQ Press.

“modern” powers being used by presidents dating back to George Washington.30 While the modern presidency continues to play an important role in presidential studies, its limitations have led to the emergence of another view that can be broadly categorized as the post-modern presidency. This approach incorporates both the personal elements of the modern presidency but within a larger constitutional/formal powers context. The revival of prerogative power, governing through public politics, the enlargement of support staff of the executive branch, targeted use of presidential appointments, increased “whipping” of votes in Congress, and the greater role and influence of the Vice President have been identified as characteristics of the post-modern presidency.31 Any review of presidential pardon power must use elements of all three of these approaches to presidential scholarship. The formal/traditional approach can be used to assess the constitutional basis for the pardon power. The modern and post-modern approaches provide characteristics that will be useful in assessing current usage of the pardon power. While its goal is not to demonstrate the merits of one approach over another, this analysis provides yet another opportunity to test the emphasis on personal power that lies at the heart of the modern presidency approach.

30 Nichols, David K. 1994. The Myth of the Modern Presidency. University Park: The Pennsylvania State University Press. 31 Barilleaux, Ryan J. 1988. The post-modern presidency: the office after Ronald Reagan. New York, NY: Praeger.

ADMINISTRATIVE DISCRETION SCHOLARSHIP – A presidential pardon can be considered the ultimate act of administrative discretion. While the Constitution specifically assigns the pardon power to the president, it is silent on the particulars of its use. It is in this silence that discretion resides. Kenneth C. Davis writes, “A public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction.”32 Clearly, the presidential pardon falls squarely within this definition of discretion. The scholarly study of administrative discretion has considered both its use and its impacts. That is, who and how is discretion used as well as what are the consequences of its use. An important component common to both of these levels of study is the appropriateness of discretion allowed. Scholars have sought to understand how much is appropriate and how is it to be controlled. Within the body of literature, administrative discretion is viewed as a necessary component of the American political system. Very few, if any, scholars argue that all discretion should be eliminated. Proponents of discretion argue it provides the necessary flexibility for public employees to perform their jobs well.33 Critics argue that discretion can lead to arbitrary, capricious, and discriminatory decisions.34 The challenge then is to provide

32 Davis, Discretionary Justice. 4. 33 See Handler, Joel F. 1986. The Conditions of Discretion: Autonomy, Community, and Bureaucracy. New York, NY: Russell Sage Foundation, or Maynard-Moody, Steven, Michael Musheno, and Dennis Palumbo. 1990. Street-Wise Social Policy: Resolving the Dilemma of Street-Level Influence and Successful Implementation. Western Political Quarterly 43 (December): 833-49. 34 See Davis, Discretionary Justice: A Preliminary Inquiry, or Ludd, Steven O. 1986. The Essentiality of Judicial Review: Toward a More Balanced Understanding of Administrative Discretion in American Government. In Douglas Shumavon and K. Hibbeln, eds., Administrative Discretion and Public Policy Implementation. New York, NY: Preager Publishers.

discretionary power at a level that allows appropriate margins for flexibility while simultaneously preventing arbitrary or capricious use of that power. Linking discretion to the larger concept of political power, discretion determines how scarce public resources are allocated among potential recipients.35 In this light, the positive power of discretion to distribute can also become the negative power to discriminate.36 Thus we are most interested in discretion and its connection with issues of efficiency, equity, justice, and fairness. Where does administrative discretion come from? The literature argues that discretion is predominantly a product of legislative activity. “Where law ends, discretion begins.”37 As a product of legislation, discretion interacts with both legislative objectives and authority. This becomes important if we adopt the position that legislatures are responsive to public demands and attempt to address them through legislative action. Public officials can use discretion to support, stall, or undermine legislative objectives. In this light, discretion may be used to thwart or advance the goals and objectives of the public as enunciated through the legislative process. How is discretion created in the legislative process? Legislators create discretion through the passage of vague legislation.38 Vague legislation is adopted by legislatures (at all levels of government) for many reasons.

35 Peters, B. Guy. 1993. Tragic Choices: Administrative Rulemaking and Policy Choice, in Richard A. Chapman (ed) Ethics in Public Service, Ottawa: Carleton University Press, 43-57. 36 Davis, Discretionary Justice. 37 Ibid. 3. 38 MacIntyre, Angus A. 1985. The Multiple Sources of Statutory Ambiguity: Tracing the Legislative Origins to Administrative Discretion. In Administrative Discretion: Problems and Prospects, ed. Douglas H. Shumavon and H. Kenneth Hibbeln, 67-88. New York, NY: Praeger Publishers.

Minimum winning coalitions may require compromise for passage. Information expertise in a particular policy area may be unknown, unclear, or unsettled. Vague legislation also provides political cover for politicians who want to point to action in a particular policy area. In addition, attempts to specify legislation to reduce discretion have created difficulties.39 Prescribed statutes may constrict agency options that in turn may limit the achievement of legislatively stated objectives. In short, specific provisions that limit discretion may undermine the overall objectives of the legislation. If we consider the Constitution the original legislation of the U.S. federal system, we can see the pardon power being impacted by many of these variables. The impact of discretion on public policy is most directly demonstrated by the activities of the “street-level bureaucrat.” In the case of presidential pardons, both the President and the Office of the Pardon Attorney serve this street-level function. Front-line public officials often decide how a service is delivered, who will get it, and thus impact the socialization of public expectations of government services.40 Street-level bureaucrats are influenced by facts, values, and intuition.41 How this wide variety of personal and organizational influences effect public policy creates the need to limit and control administrative discretion. The literature also offers insights into how discretion might be controlled.

39 Corwin, Erik H. 1992. Congressional Limits on Agency Discretion: A Case Study of the Hazardous and Solid Waste Amendments of 1984. In Harvard Journal on Legislation 29: 517-60. 40 Lipsky, Michael. 1980. Street-level bureaucracy: dilemmas of the individual in public services. New York: Russell Sage Foundation. 41 Davis, Discretionary Justice. 4.

K.C. Davis provides a framework to limit discretion using a number of tools. He offers three broad constraints on discretion: confining, structuring, and checking. These three constraints can be used together and offer different methods of limiting and controlling discretion. Confining places clear boundaries around discretion. It defines the range and scope of discretionary power. The objective for confining discretion is to eliminate unnecessary discretion and to better define the bounds of necessary discretion. Confining is typically accomplished through the rule-making process. Rules provide specific boundaries for the use of discretion. Rule-making is further considered below. Davis argues that rules must consider not only what is known but also what is unknown. He suggests the use of hypothetical situations to create a comprehensive set of rules. Only through a thoughtful consideration of known and unknown situations can the appropriate amount of discretion be identified and delineated. Structuring provides order and regularity. It serves as a means to monitor the behavior of public officials. Rules and rule-making serve as one means of structuring administrative discretion and are a central component of the policy process.42 Borrowing from Davis, it creates the boundaries within which public officials can exercise discretion. Specific rules may serve as “muscles” or “prayers.”43 “Muscles” reduce discretion through coercive controls. “Prayers” require action but do not predetermine responses. However, all administrative rules are not equal. This is particularly important

42 Kerwin, Cornelius M. 1994. Rulemaking: How Government Agencies Write Law and Make Policy. Washington, D.C.: Congressional Quarterly Press. 43 Gormley, William T., Jr. 1989. Taming the Bureaucracy: Muscles, Prayers, and Other Strategies. Princeton, NJ: Princeton University Press.

when discretion is a constitutional grant of power that supercedes administrative constraints, i.e., executive pardon power. In order for rules to be effective, they must be transparent (well-defined and universally understood), accessible (applicable to concrete situations without excessive difficulty), and congruent (produce the desired behavior).44 We must remain cognizant of these demands on rules and rule-making if we seek to adequately confine discretion. Fundamentally, structuring is dependent upon a watchful public eye in order to be effective. This is perhaps a weakness of the structuring constraint. Checking is the final discretionary constraint mechanism offered by Davis. Checking is the institutional constraints placed on discretionary power. It may include direct supervision, internal or external oversight, or judicial oversight. Checking is the formal institutional complement to structuring. In fact, issues raised through structuring may require components of checking for resolution. For example, citizens may pursue judicial remedy when they are prohibited from obtaining agency information or attending an agency meeting. Checking discretionary power may come from a variety of institutional sources.45 These institutional sources may be informal or formal, and be applied by both internal and external sources. For example, an external formal check on presidential power comes from Congress. The president’s own moral code or approach to discretion may serve as an internal informal

44 Diver, Colin. 1983. The Optimal Precision of Administrative Rules. In Yale Law Journal 93: 65-109. 45 Gilbert, Charles E. 1959. The Framework of Administrative Responsibility. The Journal of Politics 21: 373- 407.

check on his powers. Gilbert argues that accountability, or the checking of discretionary power, is best derived from formal restraints administered by external powers. The American political system is a representative democracy. The principal-agent relationship is paramount in a representative democracy. Confining, structuring, and checking can be viewed in total as an attempt to hold public officials accountable and responsible. It has been argued that internal controls are adequate checks on discretion.46 Internal controls may include: partisan loyalty, professional norms, or a personal sense of duty. Friedrich argues a responsible administrator is one who is responsive to technical knowledge and popular sentiment. This view was sharply criticized by those who thought external controls, primarily sanctions, were a more appropriate means of controlling discretion.47 In sum, Friedrich argues for eliciting responsible behavior, while Finer argues for enforcement. The discretion literature provides many useful touchstones for assessing the executive pardon power. Most importantly, it identifies the potential for using administrative rules as guidelines to streamline and standardize the pardon process. The Department of Justice has established a specific set of guidelines that control the pardon application process and review. However, these rules apply only if the president chooses to use them. Thus their effectiveness at controlling or checking pardon power must be questioned and will be a key component of this analysis.

46 Friedrich, Carl Joachim. 1940. Public Policy and the Nature of Administrative Responsibility. In Public Policy, Friedrich and Mason, eds. Cambridge: Harvard University Press. 3-24. 47 Finer, Herman. 1941. Administrative Responsibility and Democratic Government. Public Administration Review 1: 335-350.

MASS COMMUNICATIONS SCHOLARSHIP – The mass communications literature is vast and covers many areas that are unrelated to this study. The focus of this study with respect to mass communications is the concept of media effects. That is, what effect if any, do mass communications have on both the senders and receivers of messages? If there is no effect, we need not be concerned with mass communication. If however there is an effect, we must attempt to identify both the degree and quality of its impact(s). It has been argued that mass media effects both politics and culture. Mass media effect politics by “providing an arena and channel for wide debate” and as “a means of exercising power by virtue of the relatively privileged access that politicians and agents of government can generally claim” (McQuail 2000: 4). Mass media effects culture as “a primary source of definitions and images of social reality” and as “the largest focus of leisure time interest, providing the shared ‘cultural environment’ for the most people and more so than any other single institution.”48 Let me first consider more broadly the role of the mass media in a democratic society. Functions of Mass Media. What are the functions of the media? One answer is that the media has a social responsibility to fulfill. Because of its privileged constitutional position, the press has an obligation to educate and inform the public as it goes through the deliberative process of establishing public policy.49 Thus the press is a conduit through which citizens are able to

48 McQuail, Denis. 2000. Mass Communication Theory, 4th ed. London: Sage Publications Ltd. 4. 49 Clark, Peter and Susan H. Evans. 1983. Covering Campaigns: journalism in congressional elections. Stanford, CA: Stanford University Press.

collect and evaluate public information. Harold Lasswell identifies three functions that the mass media performs: surveillance, interpretation, and socialization.50 The media performs a surveillance function by searching for and selecting the images and ideas to be sent to the public. Walter Lippmann described this function as being like a searchlight restlessly moving about.51 Lippmann was deeply concerned with this function because he saw a media that moved from one issue to another with little coherence or connection. Lasswell’s second function of the media is interpretation. As interpreter, the media decides what messages to send as well as how these messages will be sent. This function puts the media in a powerful position of message gate keeping. This gate keeping function is associated with Lasswell’s third function of the media, socialization. The messages selected and sent by the media largely shape how the public views the world in which they live. How we perceive and understand the world, no doubt influences how we evaluate and participate in it. Gate Keeping and Agenda-Setting. The mass media literature elaborates at some length on what Lasswell identifies as the interpretation and socialization functions. First, let us consider the gate keeping function. The mass media serves as a gatekeeper to the wide variety of messages that are sent out to the public. Importantly, only a fraction of the total messages put out are selected for coverage by mass media. Thus the media acts first as a filter. What factors influence the gate keeping function? Shoemaker identifies

50 Lasswell, Harold D. 1969. The Structure and Function of Communication in Society. Mass Communications, ed. Wilbur Schramm. Urbana: University of Illinois Press. 51 Lippmann, Walter. 1922. Public Opinion. New York: Harcourt Brace.

several forces that determine what messages make it through the “gate.”52 Messages may be influenced by forces on either side of the gatekeeper (i.e., trying to push it through or keep it out), there are characteristics of the message itself which make it attractive or unattractive to the gatekeeper (e.g., newsworthiness), and there are the individual characteristics of the gatekeeper himself (e.g., personal attitudes, biases, values). All of these factors influence the quantity and the quality of the messages that are selected for distribution by mass media. In addition to gate keeping, mass media plays a role as a public agenda-setter. Those messages that make it through the gate keeping function help construct the reality of the audience who receives them. Through agenda-setting, mass media influences what issues are to be considered important by the public.53 This may encourage political leaders to consider these issues ahead of others. Not only does mass media influence the public agenda, it may also define the criteria to be used when evaluating these issues. Iyengar & Kinder call this priming.54 While agenda-setting and priming are important functions of mass media, framing may be even more important to understand. Mass media uses two primary types of framing, thematic and episodic.55 Thematic framing places stories in a broad context and connects it with other issues and ideas. Episodic framing treats stories as discrete events. Little or no attempt is made to connect one story with another. Most mass

52 Shoemaker, Pamela. 1991. Gatekeeping. Newbury Park: Sage Publications. 53 Iyengar, Shanto and Donald R. Kinder. 1987. News That Matters, Television and American Opinion. Chicago: The University of Chicago Press. 54 Ibid.

media coverage uses an episodic frame. The use of episodic frames is considered to be one of the major problems associated with the modern mass media.56 Effects. None of the above issues would have much importance if we did not assume that mass media has an influence on its audience. Dennis McQuail summarizes the effects literature into three categories: direct effects, minimal effects, and mediated effects.57 Direct effects emerged as an explanation for the totalitarian regimes that arose during the 1930s and 1940s in Europe. Proponents of direct effects argued that media messages had immediate and substantial effects on the audience. Like a hypodermic needle, all recipients received messages in the same way. Lazarsfeld and his cohorts challenged the direct effects theory with a minimal effects theory.58 The minimal effects theory posited that media messages had little or no effect on mass audiences. More recent scholarship has settled somewhere in between these two polar theories. A mediated effect approach suggests that the effects of media messages are influenced by a variety of factors. This multivariate approach makes the study of effects much more complicated, but seems more congruent with reality.

55 Iyengar, Shanto. 1991. Is Anyone Responsible? How Television Frames Political Issues. Chicago: The University of Chicago Press. 56 For example, see Cappella, Joseph H. and Kathleen Hall Jamieson. 1996. New Frames, Political Cynicism, and Media Cynicism. Annals, AAPSS, 546 (July): 71-84, Iyengar, Shanto. 1991. Is Anyone Responsible? How Television Frames Political Issues. Chicago: The University of Chicago Press, or Wolfson, Lewis W. 1985. The Untapped Power of the Press, Explaining Government to the People. New York: Praeger Publishers. 57 McQuail, Denis. 1979. The Influence and Effects of Mass Media. In Media Power in Politics, 3rd ed., ed. Doris A. Graber, 7-24. Washington, D.C.: CQ Press. 58 Lazarsfeld, Paul F., Bernard Berelson, and Hazel Gaudet. 1948. The people's choice; how the voter makes up his mind in a presidential campaign. New York: Columbia University Press.

SUMMARY – This broad sweep of three discrete bodies of literature provides the foundation for this study. The modern presidency provides us with the contrast between formal and informal powers. Can the use of a formal power like the pardon have an impact on the use of the other powers, formal or informal, of the president? Administrative discretion raises issues of appropriate use, control, and limits. Finally, mass media effects may shape how pardons are viewed by the public and thus may influence the use of this presidential power.

3 RESEARCH QUESTION AND METHODOLGY

The frequency of presidential pardons and commutations is somewhat surprising. Since 190059, an average of 203 executive pardons and commutations were granted per year. Yet beginning with President Ronald Reagan, the number of approved pardons has dramatically declined. While President Carter averaged 142 pardons and commutations per year, President Reagan saw his average decline to 51 per year. Presidents G.H.W. Bush and Clinton have continued this downward trend, issuing just 19 and 57 pardons and commutations per year respectively. Until a flurry of pardon activity in the closing days of his presidency, President Clinton had averaged just 27 pardon actions per year. Figure 1 depicts the pardon and commutation activities of each president since 1900 (see Appendix 1 for additional details). This recent trend towards disuse of the pardon power is the basis for the research question of this dissertation. What factor or factors might explain the rapid and precipitous decline in the granting of presidential pardons and commutations since 1980?

Figure 1: Pardons & Commutations by President (1900-2001)

59 The Office of the Pardon Attorney has not compiled pardon data prior to 1900.

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HYPOTHESES. The research question posed above asks why we have seen a substantial decline in the use of presidential pardon power since 1980. This decline seems to be somewhat at odds with the general notion of the expanded powers of the modern presidency. What factors might we look to in an effort to explain the decline in pardon usage? I offer three hypotheses and the methods to test them.

H1: PRESIDENTIAL PARDON POWER IS OBSOLETE.

Pardons were originally granted on the basis of forgiveness or mercy.60 As an act of mercy, the pardon could mitigate a harsh or unjust legal process. Thus the pardon served to protect citizens as criminal and legal systems were developing and evolving. This hypothesis suggests that the need for a

mitigating power is less necessary under a modern criminal justice system. The justice system itself may offer enough protections to prevent unjust or overly harsh treatment. Appellate processes, parole, and rehabilitation programs all offer means for correcting or mitigating judicial punishment. This hypothesis will be tested by looking at the number of pardon requests submitted to the Office of the Pardon Attorney in the Department of Justice (Office of the Pardon Attorney). The expectation is to find fewer pardon requests being submitted over time because petitioners are finding relief through other means, e.g. parole, appeals, alternative sentencing programs.

H2: ADMINISTRATIVE CHANGES HAVE REDUCED THE NUMBER OF PRESIDENTIAL PARDON GRANTS.

The Office of the Pardon Attorney in the Department of Justice administers presidential pardons. Their actions are governed by a set of guidelines articulated in Section 28 of the Code of Federal Regulations. These guidelines establish a process by which pardon petitions are submitted, reviewed, and recommendations are made. While the guidelines establish a process for pardon requests, the recommendations to grant or deny a pardon remain only advisory. The president is bound only by the Constitution which is silent on the decision making process itself. Although the guidelines that govern pardon requests are not binding, changes in the administrative rules could influence the process and thus the decision. For example, rules can be used to either encourage or discourage

60 Moore, Pardons. 17.

petition applications. To test this hypothesis, I will systematically review the administrative procedures used to process pardon petitions. I expect to find changes in the administrative process that have made pardon requests more difficult to submit, more difficult to be approved, or a combination of both.

H3: MASS MEDIA COVERAGE DISCOURAGES THE USE OF PRESIDENTIAL PARDON POWER.

The first two hypotheses are predominantly procedural and process oriented. They seek to explain the decline in pardons granted through primarily endogenous institutional mechanisms. The third hypothesis moves in a different direction and offers a different view of the presidential pardon. This hypothesis suggests that exogenous factors play a significant role in the declining use of the pardon. More specifically, concern with mass media coverage of potentially controversial pardons may extract a political price that presidents are not willing to pay. Negative media coverage of any kind may serve to damage a president’s popular standing. The potential implications of diminished popular support are well argued in the “modern” presidency literature. The testing of this hypothesis requires an analysis of mass media coverage of presidential pardons. I will first look at the extent of media coverage of pardons. I will then analyze how the pardon is covered by the mass media. For example, how is the pardon as a presidential power presented? Is it explained and placed in context? Does the coverage present a balanced view or is there an obvious bias? Only by analyzing a variety of stories can we begin to understand how the public may understand the presidential pardon.

METHODOLOGY. More than one methodological tool is needed to pursue the research question and the related hypotheses discussed above. H1 and H2 rely primarily on an historical approach to assess changes over time.

H3 uses the case study approach. Specific methodological approaches for each hypothesis are presented below.

H1: Presidential pardon power is obsolete. Generating the historical trends of pardon petitions submitted for approval is the initial test of this hypothesis. The data for this test is a simple frequency count of how many petitions are submitted to the Office of the Pardon Attorney each year. I expect to find a decreasing number of pardon petitions, particularly since 1900 to the present time. The data necessary for this analysis is available from the Office of the Pardon Attorney. This type of analysis is direct and allows me to look for trends and patterns over an extended period of time.

H2: Administrative changes have reduced the number of presidential pardon grants. The data necessary to test this hypothesis comes from several sources. First, the Code of Federal Regulations includes the administrative rules that govern the pardon process. For example, in 1983 the Reagan Administration increased the waiting period prior to applying for executive clemency.61 An extensive review of the administrative rules used over time may uncover additional changes that impact the granting of pardons. In support of this hypothesis, I expect to find increasing requirements and conditions that make pardon application and approval more difficult to obtain.

Where possible, personal interviews with Office of the Pardon Attorney personnel may be used to provide primarily anecdotal analysis. Confidentiality and willingness limit the usefulness of this potential rich source of information.

H3: Mass media coverage discourages the use of presidential pardon power. As indicated above, the test of this hypothesis is outside of the rules and processes typically guiding a presidential pardon. Intuitively, it seems to offer a plausible explanation for the decreasing rate of affirmative presidential pardon grants. Unlike the first two hypotheses, a case study method will be used to test this hypothesis. Two cases provide the basis for the analysis. The two cases are: 1) the pardon of President Richard Nixon by President Gerald Ford; and 2) the pardon of Marc Rich by President Bill Clinton. These two cases offer a unique set of issues to consider. They both are considered high- profile pardons, were very controversial when granted, and attracted significant attention from the press. Thus, both of the selected cases can be described as non-routine use of the pardon power that fall outside the normal processes of more “routine” presidential pardons. I have selected print media coverage as the data source for these two case studies. The data collection targets two major newspapers, the New York Times, and the Washington Post. These sources provide national political news coverage, have their stories reprinted by other media outlets, and are often used in studies of this nature.

61 Ruckman, P.S., Jr. 1996. Federal Executive Clemency in the United States, 1934-1994: An Empirical Analysis. Paper presented at the Annual Meeting of the Southern Political Science Association, Atlanta, GA, 6-9 November. 6.

The collected data will be subjected to a form of content analysis in order to generate an overall "net tone." The approach is in part modeled on the work of Fredric T. Smoller in The Six O'Clock Presidency.62 Smoller evaluated a series of television news broadcasts with a coding system that resulted in either a positive, negative, or neutral content rating. The unit of analysis was individual news stories. I use at a similar approach for the print media pardon stories. Each story will be coded across three variables: the source (national, local, columnist, wire service, etc.), the type of content (news, feature, editorial, or cartoon), and an evaluative direction. A story that portrays the use of the pardon power in a favorable light is coded as a positive. Stories that present the pardon in an unfavorable light are coded as negative. Stories that are judged to be balanced are coded as neutral. The content analysis evaluates the presentation of the pardon as a presidential power. It is not an evaluation of the pardon decision itself. Through a compilation of the individual ratings of each story, I arrive at an overall net tone (positive stories less negative stories) for presidential pardon news coverage. Through this type of content analysis, I expect to find an overall negative net tone for presidential pardon news coverage. I also expect to find the overall tone to grow increasingly negative as I move from the Nixon case to the Rich case. IMPLICATIONS OF HYPOTHESES TESTS. This dissertation attempts to provide explanations for a specific presidential decision making process. In an ideal world, I would simply ask all living presidents to explain each and

62 Smoller, Fredric T. 1990. The Six O’Clock Presidency: A Theory of Presidential Press Relations in the Age of Television. New York : Praeger.

every pardon decision they made. Recognizing the improbability of this occurring, I must use indicators or proxy variables that assist in evaluating the pardon process. Using the combination of hypotheses and their related indicators, I hope to be able to make substantive, albeit tentative, inferences regarding the use of presidential pardon power. I do not expect to be able to reach a definitive conclusion with this study, but I do expect to be able to offer an empirically justified and plausible explanation for the decreasing use of presidential pardon power.

4 HISTORICAL DEVELOPMENTS AND EVOLUTION

Any assessment of presidential pardon power must first begin with an understanding of its origins and subsequent development over time. The power to pardon is specifically assigned to the President in the Constitution of the United States, but like many constitutional provisions, the grant of power is devoid of specificity on its usage. We could surmise the reasons for this lack of detail by the Framers; however, it may be more useful to assess the historical pardon that served as the foundation for the language that ultimately made its way into the Constitution. We can then look at the evolution of the pardon in the United States through the process of judicial review to understand how the pardon power has evolved into its current day usage and interpretation. The power to pardon is not unique to the United States. It is found in all cultures and appears in virtually every constitution.63 “Retributive justice and pardon were bound together in the oldest known legal code–the Code of Hammurabi, developed by the Babylonians around the eighteenth century B.C.”64 A more direct influence on the U.S. Framers was the English common law tradition upon which the American system was based. Included in the English system was the King’s Pardon. Thus the Framers of the U.S. Constitution had both a long history and direct experience from which to draw upon when debating the merits of the pardon power and its inclusion in the Constitution.

63 Moore, Pardons. 7. 64 Ibid. 15.

The King of England possessed the power to pardon. However, within the English system of common law, other public officials also had the right to exercise pardon authority. Those with the authority to punish also had the power to pardon. Thus nobility, local officials, and church officials all claimed pardon power as their own. This created a system of both potential conflicts and potential abuses of power where a pardon could be traded for political and personal advantage. Shared pardon authority ended in 1536 when the Parliament granted exclusive pardon authority to the King.65 Rather than having multiple sources of power that could use and/or abuse the pardon, the Parliament relinquished all authority to the King. However, this change did not eliminate the some times inappropriate use of the pardon power. Inappropriate uses of the pardon power by the King included the selling of pardons to those who could afford them, pardon grants in exchange for military service as well as for agreement to serve as a laborer in the English colonies. While these sometimes less than noble uses of the pardon are notable, we should not overlook the pardon’s usefulness in righting a wrong that might otherwise go unchecked. In addition to understanding who had the authority to grant pardons, it is also important to understand why. The pardon played an important role in the development of early legal systems. Primitive legal systems could be harsh and unforgiving. A pardon could be used to moderate this harshness and make allowances for circumstances and situations. Kathleen Moore writes, “The pardoning power gave effect to distinctions that were either lacking or insufficiently developed in the young system of criminal law—

65 Humbert, The Pardoning Power of the President. 10.

distinctions between manslaughter and murder, for example, or between intentional and accidental harms. Excuses…or justifications…were recognized grounds for pardons, long before they became grounds for acquittal.”66 Pardons allowed for the recognition that not all cases were alike and thus not all punishments were appropriate. The Framers of the Constitution set out to create a new system of governance. Matters of organization and the distribution of power were paramount issues that took considerable thought and energy. The power to pardon does not rank as one of the great constitutional debates. In fact, the record is rather sparse on the pardon’s emergence and inclusion in the Constitution. However, we do know there was a limited debate on the power to pardon and it revolved around three issues. First, should the power to pardon be included in the proposed constitution? Second, who should have the power to pardon? And third, will there be any specified limits place on the pardon power? As was noted above, the Framers were familiar with the power to pardon. Most of the state constitutions at the time provided provisions for executive pardon power. Although pardon power was limited, it was well known and commonly accepted as a legitimate use of state power. Despite the relatively well known status of the pardon power, it was not included in either of the original constitutional proposals (the Virginia and the New Jersey plans). Records indicate that Charles Pickney’s Draft of a Federal Government and Alexander Hamilton’s Plan of Government included an executive power to pardon. It was John Rutledge’s marginal notes on the

66 Moore, Pardons. 18.

Virginia Plan that ultimately established the language for the constitutional pardon provision that would later be adopted. Rutledge wrote, “The power of pardoning vested in the Executive: his pardon shall not however be pleadable to an impeachment.”67 This phrase would be revised to read, “He shall have the power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of impeachment”68 and was incorporated into the draft constitution. Having now incorporated the power to pardon into the draft constitution, the debate shifted to who should exercise such power. Roger Sherman argued unsuccessfully for Senate consent of executive pardons. Luther Martin was also unsuccessful in his attempt to add “after conviction” to the pardon clause. It would be Hamilton who would most clearly articulate the reasons for locating the pardon power with the executive exclusively. In The Federalist, Number 74, he wrote, The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel…It may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat would naturally inspire scrupulousness and caution…It is not to be doubted,

67 Humbert, The Pardoning Power of the President. 15. 68 Ibid.

that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever.

Hamilton raised several important issues including the role of public pressure and the ability to react in a timely manner. In what has become a standard reference particularly with respect to amnesty grants, Hamilton wrote, “In seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.”69 President Ford used this same argument in his statement granting Richard Nixon a pardon. When explaining why he decide to grant the pardon rather than waiting for the judicial process to move forward, Ford said, “During this long period of delay and potential litigation, ugly passions would again be aroused, our people would again be polarized in their opinions, and the credibility of our free institutions would again be challenged at home and abroad.”70 Article II, Section 2 of the ratified U.S. Constitution provides for the executive power to pardon. Like many of the constitutional provisions, the pardon power was granted with no guidance to its usage or limits. It would be the process of judicial review that would add understanding, specificity, and address the limits of presidential pardon authority.

69 Hamilton, Alexander, James Madison, and John Jay. 1961. The Federalist, Edited by Benjamin Fletcher Wright. Cambridge: The Belknap Press of Harvard University Press. 475. 70 Pardon statement made President Gerald R. Ford when announcing his pardon of Richard M. Nixon on September 14, 1974.

Nearly 22,000 presidential pardons have been granted by U.S presidents from Washington to Clinton.71 Most of these executive actions were taken with little notice or attention. They were simply administrative actions that affected only the recipients of presidential pardons. However, five of these pardon actions would play an important role in defining the pardon power as it is now understood and administered. These five pardons were reviewed by the U.S. Supreme Court, which used them to add the specificity lacking in the Constitution itself. Each case will be presented in chronological order. United States v. Wilson (1833). George Wilson raised the first significant challenge to the pardon power. He had been charged with numerous counts of mail robbery but received a pardon from President Jackson. Wilson was later charged with a second set of crimes and rejected a second pardon under the notion that acceptance of a pardon inferred guilt. The Court turned to the historical record and held that Wilson could indeed reject the presidential pardon. Chief Justice Marshall wrote, “A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance.”72 Secondarily, the Court held that, “a pardon is an act of grace, proceeding from the power intrusted (sic) with the execution of the laws.”73 This decision was important in that it potentially placed limits on the pardon (subject to acceptance), and it began the

71 Estimated number using Humbert (1941) and Office of the Pardon Attorney data. 72 United States v. Wilson, 32 U.S. 150 (1833). 73 Ibid.

argument over the purpose of presidential pardon power (act of grace or administration). Ex parte Wells (1855). The next legal challenge came from William Wells. In this case, President Fillmore granted the convicted murderer a conditional pardon that commuted his death sentence to life in prison. Wells challenged the president’s authority to grant anything less than a full pardon. The Court found for the President and established the authority to grant conditional pardons. Writing for the Court, Justice Wayne relied on historical precedent to argue the validity of the conditional pardon. Justice Wayne wrote, “The real language of the Constitution is general; that is, common to the class of pardons, or extending the power to pardon, to all kinds of pardons known in the law as…In this view of the Constitution, by giving to its words their proper meaning, the power to pardon conditionally is not one of inference at all, but one conferred in terms.”74 While the Wilson case had placed limits on pardon power, the Wells case had expanded it to include conditional pardons. Ex parte Garland (1867). This case would be another to expand presidential pardon authority. A.H. Garland had served as a member of the Congress of the Confederate States during the Civil War. Following the conclusion of the war, the U.S. Congress adopted a provision requiring all lawyers who wanted to practice in the federal courts to swear to an oath that they had never taken up arms against the United States. Because of his service to the Confederate States, Garland could not swear to this oath and thus was prohibited from practicing law in the federal courts. President

Johnson granted Garland a pardon for offenses he may have committed during the war. The court challenge in this case addressed the issue of timing (an issue that the Framers had discussed prior to adopting the pardon provision). The Court found that Garland need not violate the oath requirement prior to receiving the presidential pardon. “[The pardoning power] extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.75 The Garland case was important for several reasons. First, it was a clear expansion of the president’s pardon authority. President Nixon’s pardon would be based in part on this ruling, as the legal proceedings had not reached a conclusion in his case. Secondly, this decision began to disconnect the notion of acceptance and guilt. Garland had committed no offense, thus the assumption of guilt was not needed for a pardon grant. Burdick v. United States (1915). This decision would begin the movement away from the pardon as grace established in the Wilson case. George Burdick was an editor who refused to answer questions before a grand jury. President Wilson offered Burdick a full pardon in an effort to get him to testify. Burdick rejected the pardon and refused to testify before the grand jury. The Court reaffirmed Wilson and the right of an individual to reject a presidential pardon. They also created a crack in the pardon as grace doctrine. “Indeed, the grace of a pardon, though good in its intention, may be

74 Ibid. 75 Ex parte Garland, 4 Wallace 333 (1867).

only in pretense.”76 This opening would be used by future courts to eliminate the notion of the pardon as strictly an act of grace. Although not specifically related to the Burdick challenge, Justice McKenna would address the relationship between guilt and acceptance. In a comparison of legislative immunity and a presidential pardon, McKenna wrote, “The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession.”77 Both President Nixon and Secretary of Defense Caspar Weinberger would dispute this notion upon receipt of their own presidential pardons. Biddle v. Perovich (1927). The final precedent setting pardon case is Biddle v. Perovich. Perovich was sentenced to death following a murder conviction. President Taft commuted his sentence to life in prison. Perovich argued he had rejected the commutation and been transferred to prison without his approval. Writing for the Court, Justice Holmes provided a significant expansion of the pardon power. First, the Court rejected the pardon as grace doctrine. “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”78 In a significant expansion of presidential pardon power, the Court abandoned the right of the recipient to reject a pardon. Holmes wrote, “The

76 Burdick v. United States, 236 U.S. 90 (1915). 77 Ibid. 78 Biddle v. Perovich, 274 U.S. 486 (1927).

considerations that led to the modification had nothing to do with his will.”79 Thus the pardon is viewed as an administrative action that may or may not be to the advantage of the receipt. The Perovich decision has stood the test of time and remains the key precedent setting case today. To summarize, these cases have provided clarity and definition to the executive pardon power. Pardons may be granted as full or conditional pardons. A pardon may be granted at any time; before, during, or after conviction. Recipients may not reject a presidential pardon grant. Looking at these court rulings in total, one can argue that the presidential power to pardon is all but absolute. This has led to several interesting but untested pardon scenarios. Alexander Haig has written that one option placed before President Nixon prior to his resignation was the issuance of a pardon to himself.80 With the historical background in place, we can now turn to the analysis of modern day presidential pardon power. We begin with the two process oriented hypotheses, (1) that presidential pardon power is obsolete and (2) that administrative process changes have resulted in declining use of the pardon power.

79 Ibid. 80 Haig, Alexander M. Jr., 1992. Inner Circles, How America Changed the World. New York: Warner Books, Inc. 481.

5 ADMINISTRATIVE RULES AND PROCEDURES

“And every truth warning of dangers or harms from discretion may be matched by a truth about the need for and the benefits from discretion. Let us not overemphasize either the need for discretion or its dangers; let us emphasize both the need for discretion and its dangers.”81 Although constitutionally derived, the pardon power is essentially an administrative act of discretion. By understanding the administrative process used for executive clemency, we can hope to better understand both its application as well as its limits. In this chapter, I begin the analysis of the declining usage of the pardon by testing the first two hypotheses.

H1: Presidential pardon power is obsolete.

Does the pardon no longer serve a necessary or useful function? Has is become an outdated concept that is in decline because it simply is no longer needed? I will test this hypothesis by looking at the number of pardon petitions submitted as a measure of the overall demand for presidential pardons. Fewer pardon requests may in part explain fewer pardon grants.

H2: Administrative changes have reduced the number of presidential pardon grants.

After considering the first hypothesis, I then turn to the second hypothesis and ask if there are specific administrative factors or conditions

81 Davis, Discretionary Justice. 25.

that may have changed over time that make pardons less necessary or desirable today than in the past? By considering both of these hypotheses, we should have a much better understanding of the impacts of the administrative process through which pardon petitions are received, processed, and decided. If we can better understand the process and evaluate changes over time, this might be the simplest and most direct explanation of the declining usage of the pardon power. I begin with the submission of pardon petitions to the president. EXECUTIVE CLEMENCY PROCESS. The executive clemency process was managed by a variety of agencies before settling in the Office of the Pardon Attorney in 1894.82 The Secretary of State and the Attorney General shared the clemency process from 1789-1870. While the Attorney General had administrative responsibility for the executive clemency process, the Department of State could also issue pardon warrants. The Office of the Clerk of Pardons was established in the Attorney General’s office and served from 1865-1870. The Office of the Clerk of Pardons was transferred to the Department of Justice in 1870. The Office of the Clerk of Pardons was superceded by the Office of the Attorney in Charge of Pardons in 1891 and was re-designated the Office of the Pardon Attorney in 1894. The President ended the Department of State’s authority to issue pardon warrants and gave exclusive responsibility for administering the clemency function to the Department of Justice by Executive Order in 189383. Thus the Attorney

82 National Archives and Records Administration. Downloaded from http://www.archives.gov/research_room/federal_records_guide/pardon_attorney_rg204.html on January 9, 2004. 83 Executive Order dated June 16, 1893.

General took on the responsibility of managing all executive clemency requests, conducting the investigations, and ultimately making recommendations for each petition to the President. The Attorney General himself does not actually conduct clemency investigations but instead assigns them to the Pardon Attorney. The Pardon Attorney’s function has grown into what is now known as the Office of the Pardon Attorney. There have been 16 Pardon Attorneys since the inception of the office (see Appendix 2 for a complete list). As previously noted, the Office of the Pardon Attorney does not have the constitutional authority to grant or deny a pardon. Instead, the Office of the Pardon Attorney assists the Attorney General and the President by administering a defined and codified process. Organizationally, the Office of the Pardon Attorney is located in the U.S. Department of Justice and reports to the Deputy Attorney General. See the most recent DOJ organization chart and the Office of the Pardon Attorney position within it below (see the column on the far right side of the chart for the Office of the Pardon Attorney).

All executive clemency petitions are now submitted to the Office of the Pardon Attorney for processing, review, investigation, and recommendation.

If my first hypothesis is true [H1: Presidential pardon power is obsolete], I would expect to see fewer and fewer petitions being submitted to the Office of the Pardon Attorney for review. I would expect to see the demand for clemency decline as petitioners no longer saw value in a pardon or perhaps relied on alternative options to gain relief within the judicial system such as parole and probation.84 Analyzing the Office of the Pardon Attorney database dating back to 1900, we find as hypothesized above, the overall number of pardon and commutation petitions submitted each year to the Office of the Pardon Attorney has declined. Figure 2 graphically depicts the total petitions for both pardons and commutations submitted each year as well plotting a trend line for this data. The chart shows the variations in petition activity over the past 100 years and the general trend downward. Recognizing there may be a relationship between pardon petitions and the political party of the president, white areas on the chart are used to indicate Republican presidents and the gray areas indicate Democratic presidents. With the exception of the FDR and Truman period, there does appear to be an increase in clemency petitions when the President is a Democrat.

Figure 2: Pardon and Commutation Petitions Submitted (1900-2001)*

84 A review of the U.S. Department of Justice’s Sourcebook of Criminal Justice Statistics 1999, suggests this may not be the case. While the total population of adults in the correctional system (probation, parole, prison, and jail) has increased 243% between 1980 and 1999, the percentage of the total population on parole or probation has changed very little during this period.

*Office of the Pardon Attorney Data through 2001 (see Appendix 1 for additional details). We can see that pardon petitions peaked in the 1920s with four of the highest annual petition volumes occurring during this decade. Looking further, eight of the highest 20 annual petition application volumes occurred in the 1920s and seven of the highest 20 occurred in the 1930s. Looking at annual petitions submitted during individual presidencies, Calvin Coolidge had the single highest and two of the top three years. Bill Clinton is the only president since Franklin Roosevelt to make the top 20, with the fifth and eighteenth highest annual application volumes. Franklin D. Roosevelt had seven of the highest 20 years, Calvin Coolidge had five of the highest 20 years, and Herbert Hoover had four of the highest 20 years. The highest 20 pardon and clemency petition application volumes are shown by year and president in the table below.

Table 1: Top 20 Annual Pardon and Commutations Petition Applications*

Year President Petitions Received 1925 Coolidge 1,568 1929 Hoover 1,544 1924 Coolidge 1,515 1935 Roosevelt, F.D. 1,407 2000 Clinton 1,388 1941 Roosevelt, F.D. 1,367 1923 Coolidge 1,317 1940 Roosevelt, F.D. 1,293 1938 Roosevelt, F.D. 1,287 1942 Roosevelt, F.D. 1,272 1928 Coolidge 1,261 1933 Roosevelt, F.D. 1,235 1921 Harding 1,224 1939 Roosevelt, F.D. 1,215 1926 Coolidge 1,209 1932 Hoover 1,203 1931 Hoover 1,195 2001 Clinton 1,169 1922 Harding 1,144 1930 Hoover 1,141 * Office of the Pardon Attorney Data through 2001 Beginning in 1967, the Office of the Pardon Attorney began to report petitions submitted for pardons and commutations separately. Figure 3 depicts the pardon and commutation petitions submitted each year since 1967. Separating pardons and commutations, we see further evidence that pardon applications have indeed declined in number over the past 34 years. While the trend line does not indicate a precipitous drop-off, it does show a 51

steady decline of nearly 50% in petition activity between 1967 and 2001. Perhaps equally as interesting, is the dramatic increase in commutation petitions during the Clinton presidency. We might speculate that this increase is related to the effects of mandatory sentencing and three-strikes type legislation that had taken effect in the preceding years. However, keeping the focus of this study on pardons, this interesting but unrelated speculation will not be pursued within this work.

Figure 3: Annual Pardon and Commutation Petitions (1967-2001)

1200

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0 1970 1971 1972 1973 1969 1969 1968 1967 1977 1980 1988 1991 1993 1997 2000 1974 1975 1976 1977 1978 1979 1981 1981 1982 1983 1984 1985 1986 1987 1989 1989 1990 1992 1993 1994 1995 1996 1998 1999 2001 LBJ Nixon Ford Carter Reagan Bush Clinton Pardons Commutation Linear (Pardons) It is clear from looking at the pardon and commutation petition application data that the number of requests for a presidential pardon has in fact declined since 1900 and continues to decline even today. While declining requests may in part explain the reduction in actual pardons granted, this simple transactional data provides no insight into the reasons behind this downward trend. Let us consider a second hypothesis [H2: Administrative changes have reduced the number of presidential pardon grants] and turn to the administrative process through which pardons travel to see if we can more clearly identify factors that might explain the declining use of the pardon power. ADMINISTRATIVE HISTORY. Any activity that moves through an administrative process can be more fully understood by looking at the rules and procedures used to govern that process. In this case, executive clemency

can be understood by reviewing the administrative rules put in place that guide the actions of the Office of the Pardon Attorney.85 A cautionary note is in order with respect to the administrative process to be reviewed below. Because the Office of the Pardon Attorney exists only to assist and advise the President with no pardoning authority of their own, only those petitions that go through the Office of the Pardon Attorney will be subjected to this administrative process. These rules “do not govern requests submitted directly to the President.”86 The administrative process for an executive clemency request can be understood as five progressive yet discrete stages: application, investigation, preparation, consideration and action, and notification.87 Each stage builds on the findings of the preceding stage. Each stage also provides an opportunity to decline the petition and close the case. While some of the administrative rules guiding each stage may have changed, the basic process itself has remained relatively unchanged under the Office of the Pardon Attorney since 1894. One example of an administrative rule change is the waiting period for applying for clemency. The waiting period has varied over time and may have differed based on the type of crime committed. Let me briefly present each stage of the clemency petition process.

85 I will also look at the guidelines used by the U.S. Attorneys to comply with the investigative portion when requested by the Office of the Pardon Attorney. 86 Testimony of Pardon Attorney, Roger C. Adams before the Committee on the Judiciary, United States Senate on February 14, 2001. 87 Humbert, The Pardoning Power of the President. 82.

APPLICATION. The requirement for the submission of a Department of Justice application (petition) dates back at least to 1934.88 There are separate petitions to apply for a commutation and for a pardon.89 The executive clemency petition for a pardon requires the petitioner to submit information regarding himself (date of birth, residence, citizenship, employment etc.), specifics of the offense(s) committed, a history of all court proceedings including appeals, all incarceration and probation/parole history, the reason(s) for the clemency request, and three character witnesses. All petitioners must sign the notarized application and swear to the following: I hereby certify that all answers to the above questions and all statements contained herein are true and correct to the best of my knowledge, information, and belief. I understand that any intentional misstatements of material facts contained in this petition may cause adverse action on my petition for pardon, in addition to subjecting me to any other penalties provided by law. In petitioning the President of the United States for pardon, I do solemnly swear that I will be law-abiding and will support and defend the Constitution of the United States against all enemies, foreign and domestic, and that I take this obligation freely and without any mental reservation whatsoever, So Help Me God.

88 Ibid. 89 Both the pardon and the commutation petitions are now available for download at the Office of the Pardon Attorney website (http://www.usdoj.gov/pardon/forms.htm).

The current petition for a pardon required by the Office of the Pardon Attorney is 23 pages long and may include addendums if necessary. See Appendix 9 for the current “Petition for Pardon After Completion of Sentence” available from the Office of the Pardon Attorney. The pardon petitions submitted to the Office of the Pardon Attorney are reviewed for eligibility, the completeness and thoroughness of the request, the need for additional information or elaboration, and specifics on rehabilitation efforts.90 Currently, there is a minimum five-year waiting period following confinement or conviction (if not confined) prior to the submission of a pardon petition.91 Additional information will be requested for incomplete petitions from eligible petitioners only. The process moves forward only when the petition has been completed. INVESTIGATE. Having made it through the application stage, the Office of the Pardon Attorney moves the petition into the investigation stage. The initial investigative contact is made with the U.S. Probation Office for the federal court in which the prosecution occurred. Depending on the Probation Office’s response, the request may be denied at this point. If not denied here, the Federal Bureau of Investigation is asked to conduct a background check to insure all information is factually accurate. Depending on the findings of the background check, the investigation creates another potential decision point where the application may be denied. Having cleared the background check, the Office of the Pardon Attorney then contacts the prosecuting authority (the U.S. Attorney in the

90 Adams. Testimony before Judiciary Committee. 91 Executive Clemency: Eligibility for filing petition for pardon. 28 C.F.R. Part 1.2 (2003).

appropriate district) and the sentencing judge to obtain their input on the pardon request.92 If appropriate, additional agencies may be contacted for input. These agencies may include: the Internal Revenue Service or the U.S Citizenship and Immigration Services (formerly the Immigration and Naturalization Service). If the crime involved a victim(s), s/he may be contacted and provided the opportunity to submit comments regarding the pending clemency application. PREPARATION. Following the completion of the investigative stage, all materials are compiled and reviewed by the Office of the Pardon Attorney. The review culminates in a written report prepared by the Office of the Pardon Attorney for the Deputy Attorney General. The report presents the merits of the clemency petition and makes a recommendation for denial or approval. Note, while the process presented here is of a single petition, a group of petitions may be sent to the Deputy Attorney General for review. This is often done when the President issues a number of pardons and/or commutations at the same time (often around Christmas or at the end of a presidential term). CONSIDERATION AND ACTION. The Deputy Attorney General reviews the report and either approves it or returns it to the Office of the Pardon Attorney for revision. Only when the report reflects the decision(s) of the Deputy Attorney General is it signed and forwarded to the Counsel of the President for the President’s review and decision.93 It is important to note that the Office of the Pardon Attorney recommendation reports approved by the

92 Adams. Testimony before Judiciary Committee. 93 Ibid.

Deputy Attorney General are confidential and not available to others for review.94 Because the reports are advisory and hold no legal status, they are protected by executive privilege.95 Thus it is impossible to review the specific criteria used in making clemency recommendations to the President. Following the outcry after President Clinton’s January 19, 2001 pardons, the Bush Administration defended the confidentiality of the pardon files. White House spokesperson Scott McCellan said, “The president is entitled to receive confidential advice from government attorneys…the release of these documents would have a chilling effect on the deliberative process.”96 Once recommendations are submitted to the President, he decides if and when to take action. The Counsel of the President typically notifies the Deputy Attorney General and the Office of the Pardon Attorney of the President’s decision to either approve or deny the clemency petition(s).97 NOTIFICATION. The last stage informs the petitioner of the final disposition of the clemency petition. If the President approves the clemency request, the Office of the Pardon Attorney prepares the appropriate clemency warrant and sends it to the petitioner or his/her attorney (see Appendix 4 for an example of an Executive Grant of Clemency). The petitioner is asked to return an acknowledgement form indicating receipt of the clemency warrant.

94 Humbert. The Pardoning Power of the President. 89. 95 Executive privilege asserts that the separation of powers defined in the Constitution allows the President to maintain some level of confidentiality within his office and thus is not obliged to make all work products available for public review. The Supreme Court has recognized the need for executive privilege (e.g. United States v Nixon, 1974) but held the power is not absolute. 96 Associated Press Worldstream. “Bush Administration argues privacy for pardon review process.” August 27, 2002. 97 Adams. Testimony before Judiciary Committee.

When issuing multiple pardons, a master warrant is prepared listing all pardon recipients.98 The Office of the Pardon Attorney also receives written notification of clemency denials. The Office of the Pardon Attorney then notifies the petitioner as well as all parties who had provided input throughout the investigative stage.99 “No reason is given the applicant for the denial of clemency and no suggestion that the application be renewed at a future date is given except at the suggestion of the President in rare cases.”100 With the notification stage completed, the clemency petition process has been completed and the application file is closed. The process for a commutation is similar to the one used for a pardon. Having reviewed the clemency process, it is clear that there are numerous opportunities to deny a petition. This formalized and rule-bound structure might at first seem like a reasonable explanation for the declining number of pardons granted. Yet we see that this process had been in place for well over 40 years before the dramatic decline in pardon activity. The question still remains, what changed in the early 1980s that might explain the decline? CODE OF FEDERAL REGULATIONS. The regulations for the executive clemency process are found in Title 28, Chapter 1 of the Code of Federal Regulations (CFR).101 These regulations stipulate the process, eligibility, and guidelines used by the Department of Justice in administering executive

98 Ibid. 99 Ibid. 100 Humbart. The Pardoning Power of the President. 91. 101 The Code of Federal Regulations is available online at http://www.access.gpo.gov/nara/cfr/waisidx_03/28cfr1_03.html

clemency. The United States Attorneys’ Manual also provides some guidance by defining roles and standards for processing clemency petition investigations received from the Office of the Pardon Attorney.102 Through an analytical review of the Code of Federal Regulations, we can identify specific changes that may have affected the clemency process and thus the number of pardons granted. The Code of Federal Regulations is divided into chapters, parts, and sub-sections. The rules for executive clemency can be found in Title 28, Chapter 1, Part 1.1 through 1.11. The next sections will look at each Part of the current Code of Federal Regulations governing executive clemency and identify all changes to the executive clemency rules since 1980. Each section below begins with the current Code of Federal Regulations executive clemency language. 28 CFR PART 1.1 (2003): SUBMISSION OF PETITION; FORM TO BE USED; CONTENTS OF PETITION. A person seeking executive clemency by pardon, reprieve, commutation of sentence, or remission of fine shall execute a formal petition. The petition shall be addressed to the President of the United States and shall be submitted to the Pardon Attorney, Department of Justice, Washington, DC 20530, except for petitions relating to military offenses. Petitions and other required forms may be obtained from the Pardon Attorney. Petition forms for commutation of sentence also may be obtained from the wardens of federal penal institutions. A petitioner applying for executive clemency with respect to military offenses should

102 The U.S. Attorney’s Manual is available online at (continued on next page)

submit his or her petition directly to the Secretary of the military department that had original jurisdiction over the court-martial trial and conviction of the petitioner. In such a case, a form furnished by the Pardon Attorney may be used but should be modified to meet the needs of the particular case. Each petition for executive clemency should include the information required in the form prescribed by the Attorney General.

28 CFR Part 1.1 provides a brief description of the requirements for submitting an executive clemency petition application. The current language does a number of things including: identifies the Pardon Attorney as the point of entry, indicates the need to submit required forms, and informs potential petitioners where to obtain these forms. Only one substantive change in this section of the Code of Federal Regulations has occurred since 1981. In 1983, this section was modified to instruct petitioners to submit their clemency applications to the Pardon Attorney rather than the Attorney General. No other modification of Part 1.1 has occurred since this change in 1983. 28 CFR Part 1.2 (2003): Eligibility for filing petition for pardon. No petition for pardon should be filed until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years after the date of the conviction of the petitioner. Generally, no petition should be submitted by a person who is on probation, parole, or supervised release.

http://www.usdoj.gov:80/usao/eousa/foia_reading_room/usam/title1/2mdoj.htm#1-2.110

28 CFR Part 1.2 specifies the eligibility for the submission of clemency petitions. Both the Reagan and Clinton Administrations made modifications to this provision that may have had important impacts on the pardon process. In 1981, Part 1.2 did not address eligibility but instead listed the specific components required for the submission of a clemency petition. These requirements included: name and age of petitioner, court or courts of record, date of sentence, crime(s), etc. In 1983, the language used in this section was entirely removed, having been replaced by the requirement to obtain and use specific forms as instructed in Part 1.1. What had been Part 1.3 in 1981 became Part 1.2 in 1983 where it remains today. In 1981, the eligibility provision stated, “No petition for pardon should be filed until the expiration of a waiting period of at least three years subsequent to the date of the release of the petitioner from confinement, or, in case no prison sentence was imposed, until the expiration of a period of at least three years subsequent to the date of conviction of the petitioner.” It went on to state, “In some cases, such as those involving violation of narcotics laws, income tax laws, perjury, violation of public trust involving personal dishonesty, or other crimes of a serious nature a waiting period of five years is usually required (emphasis added). In 1983, the Reagan Administration was successful in rewriting 28 CFR 1.1-1.10. The most notable change in the clemency process was in the eligibility provisions contained in Part 1.2. The standard waiting period to become eligible to file a clemency petition was increased from three to five years following release or conviction if no prison was imposed. The section

identifying specific crimes of more “serious nature” was also rewritten to included, “…violent crimes, violation of narcotics laws, gun control laws, income tax laws, perjury, violation of public trust involving personal dishonesty, fraud involving substantial sums of money, violation involving organized crime, or other crimes of a serious nature…” The waiting period for eligibility for these crimes was increased from five to seven years. The changes made during the Reagan Administration to the eligibility requirements had two important impacts on the clemency process. First, it extended the waiting period by two years for both the standard and “serious” crimes. Second, it expanded the nature of a “serious” crime to include more types of criminal offenses including both drug and gun related crimes. The specification of these additional types of crimes had the effect of more than doubling the waiting period for many of the potential petitioners from three to seven years. In 1993, the Clinton Administration made several modifications to the clemency provisions in the Code of Federal Regulations, the most notable being in Part 1.2. In the 1993 revision, a single waiting period for all clemency petitions was established at five years. The language identifying specific “serious crimes” was eliminated, as was the extended waiting period associated with these crimes. Where the 1983 changes had made eligibility more restrictive, the 1993 changes made eligibility less restrictive. There have been no changes to this provision since 1993. 28 CFR Part 1.3 (2003): Eligibility for filing petition for commutation of sentence pardon.

No petition for commutation of sentence, including remission of fine, should be filed if other forms of judicial or administrative relief are available, except upon a showing of exceptional circumstances.

28 CFR Part 1.3 states eligibility requirements to petition for a commutation of sentence. While the eligibility for a pardon has changed a number of times since 1981, the eligibility for commutation petitions has remained virtually unchanged. Basically, this provision requires all other forms of judicial and/or administrative relief be exhausted prior to the submission of a commutation petition. While provisions of Part 1.3 have remained static, changes in appellate procedures could play an important role in determining eligibility for a commutation. However, both the commutation and appellate processes are outside the scope of this analysis and will not be addressed at this time. 28 CFR Part 1.4 (2003): Offenses against the laws of possessions or territories of the United States. Petitions for executive clemency shall relate only to violations of laws of the United States. Petitions relating to violations of laws of the possessions of the United States or territories subject to the jurisdiction of the United States should be submitted to the appropriate official or agency of the possession or territory concerned.

28 CFR Part 1.4 identifies jurisdictional boundaries for the United States and its territories. There have been no changes to this provision since 1981.

28 CFR Part 1.5 (2003): Disclosure of files. Petitions, reports, memoranda, and communications submitted or furnished in connection with the consideration of a petition for executive clemency generally shall be available only to the officials concerned with the consideration of the petition. However, they may be made available for inspection, in whole or in part, when in the judgment of the Attorney General their disclosure is required by law or the ends of justice.

28 CFR Part 1.5 places the administrative process and its work product behind the protective cover of the President’s exclusive power to pardon. This provision shelters the clemency process from Freedom of Information Act requests and public disclosure. Although access to clemency files would be of interest to many including this author, they are only advisory thus disclosure is not required. There have been no changes to this provision since 1981. 28 CFR Part 1.6 (2003): Consideration of petitions; notification of victims; recommendations to the President.

(a) Upon receipt of a petition for executive clemency, the Attorney General shall cause such investigation to be made of the matter as he or she may deem necessary and appropriate, using the services of, or obtaining reports from, appropriate officials and agencies of the Government, including the Federal Bureau of Investigation.

(b)(1) When a person requests clemency (in the form of either a commutation of a sentence or a pardon after serving a sentence) for a conviction of a felony offense for which there was a victim, and the Attorney General concludes from the information developed in the clemency case that investigation of the clemency case warrants contacting the victim, the Attorney General shall cause reasonable effort to be made to notify the victim or victims of the crime for which clemency is sought: (i) That a clemency petition has been filed; (ii) That the victim may submit comments regarding clemency; and (iii) Whether the clemency request ultimately is granted or denied by the President.

(b)(2) In determining whether contacting the victim is warranted, the Attorney General shall consider the seriousness and recency of the offense, the nature and extent of the harm to the victim, the defendant's overall criminal history and history of violent behavior, and the likelihood that clemency could be recommended in the case.

(b)(3) For the purposes of this paragraph (b), ``victim'' means an individual who: (i) Has suffered direct or threatened physical, emotional, or pecuniary harm as a result of the commission of the crime for which clemency is sought (or, in the case of an individual who died or was rendered incompetent as a direct and proximate result of the commission of the

crime for which clemency is sought, one of the following relatives of the victim (in order of preference): the spouse; an adult offspring; or a parent); and (ii) Has on file with the Federal Bureau of Prisons a request to be notified pursuant to 28 CFR 551.152 of the offender's release from custody.

(b)(4) For the purposes of this paragraph (b), ``reasonable effort'' is satisfied by mailing to the last-known address reported by the victim to the Federal Bureau of Prisons under 28 CFR 551.152. (b)(5) The provisions of this paragraph (b) apply to clemency cases filed on or after September 28, 2000.

(c) The Attorney General shall review each petition and all pertinent information developed by the investigation and shall determine whether the request for clemency is of sufficient merit to warrant favorable action by the President. The Attorney General shall report in writing his or her recommendation to the President, stating whether in his or her judgment the President should grant or deny the petition.

28 CFR Part 1.6 identifies the basic process flow of a clemency petition. It states how the process moves forward and the parties involved at each stage. This provision has undergone several modifications since 1981. With the exception of the victim’s notification requirement added in 2000, none of the revisions have substantially changed the process but have instead

added details to existing provisions. For example, in 1983, the provision requiring the Attorney General to submit a written recommendation to the President for denial was expanded to include approvals as well. In 1993, references to the Attorney General were changed to “his or her” obviously reflecting the gender of the then sitting Attorney General Janet Reno. The one substantive change to Part 1.6 occurred in September 2000 with the inclusion of “Victim Notification and Comment” provisions. These provisions require the Attorney General to consider a number of factors and determine whether or not victim notification is necessary and/or appropriate. While it is difficult to directly measure the impact of this change on the number of pardons granted or denied, it is plausible to assume that the inclusion of victim(s) comments could have an impact on both the recommendation as well as the final decision by the President. 28 CFR Part 1.7 (2003): Notification of grant of clemency. When a petition for pardon is granted, the petitioner or his or her attorney shall be notified of such action and the warrant of pardon shall be mailed to the petitioner. When commutation of sentence is granted, the petitioner shall be notified of such action and the warrant of a commutation shall be sent to the petitioner through the officer in charge of his or her place of confinement, or directly to the petitioner if he/she is on parole, probation, or supervised release.

28 CFR Part 1.7 specifies that a petitioner is to be notified in writing when granted clemency. The only change to the language in this provision is the addition of “probation, or supervised release” to the final sentence.

28 CFR Part 1.8 (2003): Notification of denial of clemency.

(a) Whenever the President notifies the Attorney General that he has denied a request for clemency, the Attorney General shall so advise the petitioner and close the case.

(b) Except in cases in which a sentence of death has been imposed, whenever the Attorney General recommends that the President deny a request for clemency and the President does not disapprove or take other action with respect to that adverse recommendation within 30 days after the date of its submission to him, it shall be presumed that the President concurs in that adverse recommendation of the Attorney General, and the Attorney General shall so advise the petitioner and close the case.

28 CFR Part 1.8 directs the Attorney General to notify a petitioner of the denial of clemency. It also establishes a 30-day time frame where no action by the President is deemed as concurrence with the Attorney General’s recommendation to deny clemency. The only modification to this provision since 1981 is the inclusion of a clause dealing with death sentence cases which are specifically exempted from the 30-day rule. 28 CFR Part 1.9 (2003): Delegation of authority. The Attorney General may delegate to any officer of the Department of Justice any of his or her duties or responsibilities under Secs. 1.1 through 1.8.

28 CFR Part 1.9 allows the Attorney General to delegate the responsibilities of the clemency provisions. The Reagan Administration added this provision in 1983. There have been no changes to this provision since its inclusion in 1983. 28 CFR Part 1.10 (2003): Procedures applicable to prisoners under a sentence of death imposed by a United States District Court. The following procedures shall apply with respect to any request for clemency by a person under a sentence of death imposed by a United States District Court for an offense against the United States. Other provisions set forth in this part shall also apply to the extent they are not inconsistent with this section. (a) Clemency in the form of reprieve or commutation of a death sentence imposed by a United States District Court shall be requested by the person under the sentence of death or by the person's attorney acting with the person's written and signed authorization. (b) No petition for reprieve or commutation of a death sentence should be filed before proceedings on the petitioner's direct appeal of the judgment of conviction and first petition under 28 U.S.C. 2255 have terminated. A petition for commutation of sentence should be filed no later than 30 days after the petitioner has received notification from the Bureau of Prisons of the scheduled date of execution. All papers in support of a petition for commutation of sentence should be filed no later than 15 days after the filing of the petition itself. Papers filed by the

petitioner more than 15 days after the commutation petition has been filed may be excluded from consideration. (c) The petitioner's clemency counsel may request to make an oral presentation of reasonable duration to the Office of the Pardon Attorney in support of the clemency petition. The presentation should be requested at the time the clemency petition is filed. The family or families of any victim of an offense for which the petitioner was sentenced to death may, with the assistance of the prosecuting office, request to make an oral presentation of reasonable duration to the Office of the Pardon Attorney. (d) Clemency proceedings may be suspended if a court orders a stay of execution for any reason other than to allow completion of the clemency proceeding. (e) Only one request for commutation of a death sentence will be processed to completion, absent a clear showing of exceptional circumstances. (f) The provisions of this Sec. 1.10 apply to any person under a sentence of death imposed by a United States District Court for whom an execution date is set on or after August 1, 2000.

28 CFR Part 1.10 creates specific procedures for clemency petitions submitted by persons sentenced to death. One notable difference in the procedures established in Part 1.10 versus the standard clemency procedures is the ability to request an oral presentation before the Office of the Pardon Attorney. Both the representative(s) of the petitioners as well as the victim(s)

may ask to be allowed to make an oral presentation before the Office of the Pardon Attorney. The Clinton Administration added this provision addressing death sentence clemency petitions in 2000. No modifications have been made since its inclusion. 28 CFR Part 1.11 (2003): Advisory nature of regulations. The regulations contained in this part are advisory only and for the internal guidance of Department of Justice personnel. They create no enforceable rights in persons applying for executive clemency, nor do they restrict the authority granted to the President under Article II, section 2 of the Constitution.

[Order No. 1798-93, 58 FR 53658, Oct. 18, 1993. Redesignated by Order No. 2317-2000, 65 FR 48381, August 8, 2000]

28 CFR Part 1.11 explicitly states the advisory nature of the clemency procedures specified in the CFR, and reiterates the constitutional basis upon which presidential pardon power is derived. The Reagan Administration added this provision in 1983. There have been no changes to this provision since 1983.

UNITED STATES ATTORNEYS’ MANUAL. Before concluding this analysis of the rules and procedures guiding the clemency process, I want to briefly review the language used in the U.S. Attorneys’ Manual regarding executive clemency (see Appendix 3 for full text of clemency procedures). The U.S. Attorney in the district of conviction is a primary source of

information in the initial investigation of a clemency petition. Recognizing the important role that the U.S. Attorney may play in the clemency process, the U.S. Attorneys’ Manual provides specific procedures to be followed for each petition request. “The views of the United States Attorney are given considerable weight in determining what recommendations the Department should make to the President. For this reason, and in order to ensure consistency, it is important that each request sent to the district receive the personal attention of the United States Attorney.”103 Because the U.S. Attorneys’ Manual provides these written guidelines, it is the only source that provides insight into the specific criteria used in evaluating clemency petitions and making final recommendations to the President. Thus a brief review is in order and may shed some light on this otherwise veiled process. Of most interest to this analysis is Section 1-2.112 titled “Standards for Considering Pardon Petitions.” This section includes an introduction and five specific provisions. The introduction restates the five-year waiting period and provides the directive that, “In general, a pardon is granted on the basis of the petitioner’s demonstrated good conduct for a substantial period of time after conviction…”104 This statement seems to draw from the historical tradition of pardons as acts of mercy and forgiveness. Provision (1) addresses “Post-conviction conduct, character, and reputation.” This provision encourages the U.S. Attorney to look at the post- conviction life of the petitioner including: family life, employment, financial

103 Department of Justice, United States Attorneys’ Manual, Role of the United States Attorney in Clemency Matters, 1-2.111. 104 Ibid.

stability, community participation, charitable work, and other meritorious service. Setting expectations for this review, “In assessing post-conviction accomplishments, each petitioner’s life circumstances are considered in their totality: it may not be appropriate or realistic to expect ‘extraordinary’ post- conviction achievements from individuals who are less fortunately situated in terms of cultural, educational, or economic background.”105 Provision (2) is titled “Seriousness and relative recentness of the offense.” Although the “serious” clause has been removed from the Code of Federal Regulations provisions covering executive clemency, the reference to serious crimes does appear in the U.S. Attorneys’ Manual. Here we see a cautionary note about the “likely effect of a pardon on law enforcement interests or upon the general public” as a consideration of the clemency petition. This section also indicates victim impact is appropriate for consideration of a clemency request. Finally, the age of the offense is considered, with “very old and relatively minor” crimes being given favorable weighting. Provision (3) is titled “Acceptance of responsibility, remorse, and atonement.” Both acceptance of responsibility and restitution to victims are identified as important factors to be considered. “A petitioner should be genuinely desirous of forgiveness rather than vindication.”106 Once again, we see the notion of the pardon as an act of mercy and forgiveness. Provision (4) is titled “Need for relief.” This section recognizes the functional administrative role of the pardon. “A felony conviction may result

105 Ibid. 106 Ibid.

in a wide variety of legal disabilities under state and federal law…”107 Thus the U.S. Attorney may consider the practical effect of a pardon in restoring privileges such as licensure or bonding to the petitioner. However, the absence of a specific need is not to be held against “an otherwise deserving applicant, who may understandably be motivated solely by a strong desire for a sign of forgiveness.”108 Provision (5) is titled “Official recommendations and reports.” This section reiterates the importance of the U.S. Attorney’s recommendation in the clemency petition review process undertaken by the Office of the Pardon Attorney. Interestingly, it closes with this sentence, “Apart from their significance to the individuals who seek them, pardons can play an important part in defining and furthering the rehabilitative goals of the criminal justice system.109 This clear statement reminds the U.S. Attorney of both the normative and administrative effects of the presidential power to pardon. The U.S. Attorneys’ Manual provides us with the most clearly defined elements used to assess a clemency petition. The repeated references to forgiveness suggest a strong predisposition towards the pardon as an act of mercy. Since both the Office of the Pardon Attorney and the U.S. Attorneys are part of the Department of Justice, we might assume these predispositions/values are shared across both organizations.

107 Ibid. 108 Ibid. 109 Ibid.

CONCLUSION. This chapter has focused on the administrative rules and procedures used to process executive clemency petitions. In doing so, I have considered two of the three hypotheses identified in this analysis:

H1: Presidential pardon power is obsolete, and

H2: Administrative changes have reduced the number of presidential pardon grants.

This analysis has allowed me to draw several conclusions regarding the use of presidential pardon power. 1. In general, requests for presidential clemency have declined since 1900. A simple trend line covering 1900 through 2001 shows a decline in annual clemency applications of nearly 40% (from approximately 1000 to 600 per year). Looking at pardon petitions only since 1967, the decline is even greater, approaching 50% fewer applications per year (from approximately 375 to less than 200 per year). Although I cannot explain why this decline is occurring, I can confirm the demand for clemency, especially pardons, is declining. 2. The administrative rules guiding the executive clemency process have undergone a number of changes since 1980. These changes have had the effect of making the executive clemency process more restrictive and then less restrictive. The Reagan Administration made the executive clemency process more restrictive by both extending the waiting periods, and by expanding the definition of “serious” crimes that had even longer waiting periods. The Clinton Administration countered the movement to more restrictive guidelines by shortening the waiting period and removing the

“serious” crimes language. Both of these changes had the effect of making the clemency provisions less restrictive. In time, we might expect to see clemency applications increase under these less restrictive conditions. 3. The recognition and inclusion of victim’s rights by the Clinton Administration added a new level of analysis in the consideration of clemency petitions. It is unlikely that this change had an effect on the submission of clemency petitions. However, it may have had an effect on the final disposition of the petition. Thus we might speculate that fewer pardons are granted because of direct victim involvement and input. There is no doubt that the use of presidential pardon power has been in decline. Fewer clemency petition requests and administrative rules changes both may have impacted the falling number of pardons granted. The administrative rules changes coincide with the dramatic decline in pardon activity since the Reagan presidency of the 1980s and may offer the best explanation of the decline that has taken place since then. Chapter 6 presents case studies of two controversial and high profile pardons and assesses the mass media coverage that followed. Through these case studies, I hope to identify another possible explanation for the declining use of presidential pardon power.

6 CASE STUDIES: RICHARD NIXON AND MARC RICH

In this chapter, I move away from the endogenous effects of administrative rules and processes on the presidential pardon and instead consider the exogenous effects of the mass media. While the previous chapter was squarely situated in the formal powers of the president, this chapter is focused on the potential impacts of pardon usage on what the modern presidency paradigm would describe as the informal powers. Is there a potential cost of political capital and does it outweigh the benefits of granting presidential pardons? Using a case study method, I will test my third and final hypothesis.

H3: Mass media coverage discourages the use of presidential pardon power.

RICHARD NIXON PARDON BACKGROUND. The Watergate break-in and subsequent cover up created the circumstances that led President Gerald R. Ford to grant and former President Richard M. Nixon to accept a presidential pardon. There are numerous books and articles covering the Watergate period available for those who are interested. I will not attempt to provide an in-depth analysis of Watergate in this work. However, a brief synopsis of the events surrounding Watergate is appropriate and useful in the analysis of the Nixon pardon. On the night of June 16, 1972 five men were arrested for what appeared to be an attempted burglary of an office in Washington, D.C. These men were arrested in the Democratic National Committee’s headquarters in the Watergate complex. The burglary set off a chain of events that revealed a trail of political chicanery, ethical laxity, and criminal activity. These initial 78

arrests and the investigations that followed resulted in both the first presidential resignation and the first president to receive a pardon in U.S. history. The five men arrested that night at the Watergate Complex were not burglarizing the office. These men had been hired by the Committee to Re- Elect the President (CRP)110 to gather political intelligence. President Nixon was made aware of the Watergate break-in the morning after it occurred.111 Initially, Nixon was unconcerned, “Watergate was an annoying problem, but it was just a minor one.”112 On June 23, 1972, Nixon met with Chief of Staff Bob Haldeman where they discussed Watergate related matters. In this conversation, the two men discussed using the Central Intelligence Agency to head off the ongoing Federal Bureau of Investigation’s investigation into the break-in. Haldemen wrote, “The FBI is convinced it’s the CIA…and Gray’s (Acting FBI Director) looking for a way out.”113 This June 23 conversation gained prominence much later in the investigation. When the tape-recorded version was released, it had an unexplained 18.5-minute gap. This tape would become the “smoking gun” that, when coupled with other tapes, ended the Nixon presidency. Watergate was not a factor in the fall presidential campaign. Nixon won a second term with a landslide victory over Democrat George McGovern. However, there still was considerable interest in the Watergate

110 The Committee to Re-Elect the President was organized to support Richard Nixon’s 1972 presidential campaign. John Mitchell, Nixon’s former Attorney General, chaired the CRP. 111 Bernstein, Carl and Bob Woodward. 1974. All the President’s Men, New York: Simon and Schuster. 22. 112 Ibid. 16. 113 Haldeman, H.R. 1994. The Haldeman Diaries. New York: G.P. Putnam’s Sons. 475.

affair. In January 1973, a Senate committee was created to investigate the matter. The Senate Select Committee on Presidential Campaign Activities (also know as the Senate Watergate Committee) was established under the chairmanship of Senator Sam Ervin of North Carolina. Concerns over illegal contributions and improper use of campaign funds topped their agenda. Nixon wrote, “The Ervin Committee…was a fascinating study in the weaknesses of human nature in general, and in particular of the partisanship and weaknesses of congressional human nature when exposed to massive publicity.”114 The Senate Watergate Committee brought Watergate into the living rooms of millions of Americans. Nixon’s disdain for the Committee increased as their investigation progressed. Since the break-in the prior June, White House Counsel John Dean had served as the point man within the Administration. Dean was charged with managing all issues related to Watergate. In this role, Dean had become aware of crazy schemes to kidnap anti-Nixon demonstration leaders, a plot to fire bomb the Brookings Institute where the Pentagon Papers were stored, the existence of illegal slush funds and Mexican money laundering practices, and White House involvement in the Watergate break-in itself. Dean was beginning to feel the pressure of what was now becoming a full-blown cover- up. Dean had also discovered that Howard Hunt, a former White House consultant, had hired the Cubans used in the Watergate break-in. In addition, Hunt was demanding hush money to remain silent. Fearing the criminal implications of his own involvement, Dean told Haldeman, “I was going to

114 Nixon, Richard. 1978. RN, The Memoirs of Richard Nixon. New York: Grosset & Dunlap. 894.

tell the President…the cover-up couldn’t go on.”115 On March 21, Nixon listened as Dean presented all he knew about the Watergate affair. Using a metaphor befitting the situation, Dean began, “We have a cancer—within— close to the presidency, that’s growing. It’s growing daily. It’s compounding—it grows geometrically now, because it compounds itself.”116 Oval Office tape recorders captured Nixon as he spoke, “What I mean is you could get a million dollars. And you could get it in cash. I know where it could be gotten.”117 If the June 23, 1972 tape did not demonstrate Nixon’s involvement, the March 21, 1973 tape did. Watergate pressures had forced the resignations of the President’s two closest advisors, H. R. “Bob” Haldeman and John Ehrlichman in late April 1973. Nixon had also fired White House Counsel John Dean. This set the stage for Alexander Haig—who became an important figure in the pardon process—to enter the White House and replace Haldeman as Chief of Staff. Haig was familiar with the White House administration having served as the military assistant to National Security Advisor, Henry Kissinger. In this role, Haig was responsible for compiling the numerous streams of intelligence flowing into the White House for singular presentation to the President. Haig left Kissinger’s staff in January 1973 to become the Vice Chief of Staff of the Army. Nixon made Haig’s assignment clear, do not “become involved in the handling of Watergate…stick exclusively to running the White House staff

115 Dean, John. 1976. Blind Ambition, The White House Years. New York: Simon and Schuster. 200. 116 Ibid. 201, and Nixon, 791. 117 Ibid. 205

and organizing the information I needed for making policy decisions.”118 Haig began his service as Chief of Staff on the afternoon of May 3, 1973. Haig stayed out of the Watergate affairs for that first afternoon only. The next day he met with Nixon and recommended the President retain legal counsel. Haig suggested Edward Bennett Williams, a noted Washington attorney. Haig writes, “Nixon was startled, ‘but he’s a criminal lawyer.’”119 As a second option, Haig also mentioned Joseph Califano, a prominent member of the Johnson Administration. Nixon rejected them both because of their strong ties to the Democratic Party. After additional consideration, they selected J. Fred Buzhardt. Buzhardt was an unknown, inexperienced, lawyer serving in the Defense Department. He had a reputation for being hardworking and ethical, and importantly, he was a Republican. Nearly all the critical players involved with the eventual pardon (Nixon, Haig, and Buzhardt) were in place. Only Vice President Ford was missing, and he would take his place in the Nixon Administration in December 1973. Watergate picked up momentum as the summer of 1973 approached. Archibald Cox was appointed Special Prosecutor to investigate the Watergate affair in May 1973. In June, ex-White House Counsel John Dean began his testimony before the Senate Watergate Committee. Dean described the complex schemes that resulted in the Watergate cover-up. Most notably, he implicated President Nixon in the scandal. Dean testified, “It is a very difficult thing for me to testify about other people. It is far more easy for me to explain my own involvement in this matter. I was

118 Nixon, RN. 856-7. 119 Haig, Inner Circles. 339.

involved in obstructing justice. The fact that I assisted another in perjured testimony. The fact that I made use of funds that were in my custody. It is far easier to talk about these things myself than to talk about what others did. Some of these people I will be referring to are friends. Some are men I greatly admire and respect. And particularly with reference to the President of the United States, I would like to say this: it is my honest belief that while the President was involved, he did not realize or appreciate at any time the implications of his involvement.”120

In July 1973, the Watergate affair was further complicated with the revelation of a White House taping system. Testifying before the Senate Watergate Committee, Deputy Assistant to the President Alexander Butterfield revealed the existence of the secret taping system. The Committee immediately saw the value in obtaining these tapes. The tapes could clarify conflicting testimony and perhaps determine whether or not the White House had been involved. Both Special Prosecutor Archibald Cox and the Senate Committee were interested in hearing the tapes. Haig and Buzhardt recommended Nixon destroy the tapes.121 On the basis of Bob Haldeman’s argument that the tapes provided his best defense,122 Nixon did not order the tapes be destroyed.

120 Dean, Blind Ambition. 308. 121 Haig, Inner Circles. 375-81. 122 Nixon, RN. 901.

In an effort to stem the tide moving against his Administration, Nixon ordered that Special Prosecutor Archibald Cox be fired. This event was dubbed the “Saturday Night Massacre” by the media and had disastrous consequences for the Nixon Administration. Nixon writes that within three days of the “massacre” at the Justice department, “there were twenty-one resolutions for my impeachment in varying stages of discussion on Capitol Hill.”123 Now a real constitutional crisis, Watergate entered its final stage. Watergate was not the only problem the Nixon Administration faced in 1973. Spiro Agnew had been the Governor of Maryland prior to his election as Vice President on the Nixon ticket. In April 1973, Agnew met with Nixon’s Chief of Staff Bob Haldeman to discuss his concerns with a potential problem. The U.S. Attorney in Baltimore was investigating kickbacks, campaign contributions, and influence peddling with state contracts in Maryland. Agnew and several associates were at the center of the investigation. Nixon, surrounded by the growing Watergate controversy, informed Agnew that the White House could not intervene for fear of additional public criticism. Lacking White House support, Agnew was forced to negotiate a plea bargain and resigned the Vice Presidency on October 10, 1973. On the morning of October 10, 1973, prior to Agnew’s resignation announcement, Nixon asked Jerry Ford to meet with him in his EOB124 office. Nixon spent the next hour and one half describing Agnew’s problems to

123 Ibid. 911. 124 Cannon, James. 1994. Time and Chance, Gerald Ford’s Appointment with History. New York: HarperCollins Publishers. 201.

Ford. Before Nixon could conclude the conversation, Ford was called back to the House floor for an important vote. Suddenly the news spread throughout the chamber that Agnew had resigned. Ford realized that he may have just gone through a typically Nixon covert interview for the Vice Presidency.125 On October 11, Nixon met with Ford to formally offer him the Vice Presidency. Ford wrote, “Nixon nominated me, I was convinced, because he wanted to pick someone who could win speedy confirmation in the Congress…someone who could help repair his frayed relations with Capitol Hill and the media.”126 Gerald Ford was the first Vice President to gain office under the provisions of the Twenty-fifth Amendment to the U.S. Constitution. The United State Senate confirmed Ford on November 27 by a vote of 92 to 3, and by the U.S. House of Representatives on December 6 by a vote of 387 to 35. Before his colleagues in the Congress, Gerald R. Ford was sworn in as Vice President of the United States on the evening of December 6, 1973. In United States v. Nixon (1974), the Supreme Court ruled against Nixon’s executive privilege claim to withhold 64 subpoenaed tape recordings. In a unanimous 8-0127 ruling, the Court ruled executive privilege to be a legitimate presidential power, albeit with some limits. “The legitimate needs of the judicial process may outweigh presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the

125 Ibid. 202. 126 Ford, Gerald R. 1979. A Time to Heal, The Autobiography of Gerald R. Ford. New York: Harper & Row, Inc. 107-08. 127 Justice William Rehnquist recused himself from the decision because of his former position within the Nixon Department of Justice.

essential functions of each branch.”128 This interpretation of executive privilege in part protects the Office of the Pardon Attorney’s process as it reviews executive clemency petitions. On July 27, 1974, the first article of impeachment (an obstruction of justice charge) was approved 27:11.129 The committee approved two more articles of impeachment on July 29 (abusing the powers of the presidency and defying House subpoenas). Chief of Staff Haig reviewed a written transcript of the June 23, 1972 tape. Haig writes, “After reading this document, I knew that the clock had stopped in Richard Nixon’s White House. What the tape showed was that the President had been aware at a very early stage of a disposition among his subordinates to cover up White House involvement in the burglary, that he had shared this disposition, and that he had given the order that legitimized, in the minds of his underlings, everything that they subsequently did to cover up the Watergate crimes.”130 On August 1, Nixon informed Haig he was going to resign the presidency and to begin preparations for such an event. As Richard Nixon prepared his resignation, Nixon’s attorney Fred Buzhardt had prepared a list of alternatives available to Nixon. He discussed the following alternatives with Haig: 1. The President could temporarily step aside under the Twenty-fifth Amendment to defend himself before the Senate, with Ford becoming Acting President until the impeachment question was settled. 2. He could delay resignation, hoping for some turn of events that might save the day.

128 United States v. Nixon, 418 U.S. 683 (1974). 129 Haig, Inner Circles. 475. 130 Ibid. 481.

3. He could try to persuade the House to settle for a vote of censure instead of impeachment. 4. The President could pardon himself, and then resign. 5. He could pardon some or all of the Watergate defendants, then pardon himself, and then resign. 6. He could resign and hope that his successor would pardon him.131

Buzhardt also provided Haig with two sheets of paper. The first was a handwritten summary of Presidential pardon powers. The second was the proper form of a presidential pardon. Haig is vague with his description of the second page only indicating, “The final item (number 6) was typed on a separate sheet of paper; I don’t know why.”132 In his book, Time and Chance, James Cannon refers to these pages as a “do-it-yourself pardon kit.”133 Haig goes on to describe a brief discussion with Ford of the six options including presidential pardon powers. However, Ford writes, “Finally, Haig said that according to some on Nixon’s White House staff, Nixon could agree to leave in return for an agreement that the new President–Gerald Ford–would pardon him.”134 Neither Haig nor Ford indicates any agreements were reached before they adjourned this meeting. Haig handed Ford the two sheets of paper and the meeting was over. Of the six alternatives outlined by Buzhardt, the first five were of no consequence to Ford. They were actions available only to Nixon. The sixth option was exclusively Ford’s. Both Jack Marsh and Bob Hartmann, Ford’s closest advisors, were upset with Ford’s naive response to the pardon issue.

131 Ibid. 132 Ibid. 133 Canon, Time and Chance. 301.

Hartmann suggested the appearance of a deal to which Ford responded, “Al wasn’t suggesting that. It was just one of the ideas that he said were being kicked around.”135 After consulting with several other advisors, Ford agreed that he should speak with Haig to clarify his position. Reading from written notes and before several witnesses Ford spoke to Haig by telephone. “I want you to understand that I have no intention of recommending what the President should do about resigning or not resigning and that nothing we talked about yesterday afternoon should be given any consideration in whatever decision the President may wish to make. ‘You’re right,’ responded Haig.”136 Ford then destroyed Buzhardt’s notes suggesting the pardon options. “I didn’t want to have them around.”137 On August 8, 1974 President Richard M. Nixon announced his resignation effective at noon the following day. With this announcement, one of the most serious political crises of American government appeared to have reached a conclusion. Until President Ford’s surprise announcement one month later. THE PARDON OF RICHARD M. NIXON. After taking office on August 9, 1974, President Ford asked his legal counselors to begin investigating presidential pardons.138 Ford was concerned with pardoning Nixon prior to indictment.139 His advisors pointed to President Wilson’s pardon of George

134 Ibid. 293. 135 Ford, A Time to Heal, 6. 136 Ibid. 13. 137 Cannon, Time and Chance. 308. 138 Ibid. 377. 139 Ibid.

Burdick140 and the subsequent Supreme Court ruling as the precedent he needed to pardon Nixon. Ford’s comments on his decision to pardon Nixon are both interesting and insightful. Over the next few days, I agonized over the idea of a pardon, and eventually several key conclusions solidified in my mind. First of all, I simply was not convinced that the country wanted to see an ex- President behind bars. We are not vengeful people; forgiveness is one of the roots of the American tradition. And Nixon, in my opinion, had already suffered enormously. His resignation was an implicit admission of guilt, and he would have to carry forever the burden of his disgrace. But I wasn’t motivated primarily by sympathy for his plight or by concern over the state of his health. It was the state of the country’s health at home and around the world that worried me.141

Ford’s thoughts capture many of the historical traditions of the pardon including: mercy, forgiveness, guilt by acceptance, and the timely use of a pardon for advantages beyond the individual recipient. President Ford issued his pardon proclamation on September 8, 1974 (see Appendix 5 for the Pardon Proclamation and Appendix 6 for the transcript of President Ford’s public statement when granting the pardon) granting Richard Nixon a total and absolute pardon. The pardon would set off a firestorm of protest both in and outside of government. Let us now turn

140 See Chapter 4. 141 Ford, A Time to Heal. 160.

to the media coverage of the pardon to better understand their presentation of this controversial presidential action. CONTENT ANALYSIS. In order to evaluate the media coverage and its presentation of the Nixon pardon, I collected 48 articles published between September 9 and September 14, 1974 (see Appendix 7 for complete list of articles). The articles were drawn from the New York Times and the Washington Post. These newspapers were selected as the publications that had significant readership beyond their local markets. The majority of the articles collected were news stories (40), but five editorials and three columns were also included. These articles amount to virtually all of those published in the New York Times and the Washington Post regarding the Nixon pardon. Over 30 different individuals contributed to the articles evaluated. Each of the articles was evaluated using a three-point scale. A “positive”142 article was given a value of one. A “neutral”143 article was given a value of zero. And a “negative”144 article was given a value of minus one. Over 90% of the articles evaluated (44 out of 48) were coded as having a neutral tone.145 While many of these articles included quotations from people

142 A positive story is defined as one that specifically identifies and tries to explain the pardon power in a favorable light by pointing out elements including: the constitutional basis, as an appropriate use of presidential power, as historically derived, as providing advantageous administrative or judicial outcomes, as an act of forgiveness, or as an act of mercy. 143 A neutral story is defined as one that states facts of the story without attempting to explanation the pardon power itself. 144 A negative story is defined as one that specifically identifies and tries to explain the pardon power in an unfavorable light by pointing out elements including: favoritism, secrecy, as an obstruction to justice, suggests quid pro quo, based on deal making ability, questions the validity of the pardon, or as an inappropriate use of presidential power. 145 In order to test intercodal reliability, I had two outside reviewers evaluate a sample of articles drawn from both the Nixon and Rich case studies. Comparing the outside reviewers’ results with my own yielded a (continued on next page) 90

criticizing President Ford’s decision to pardon Nixon, the authors wrote very little to explain the actual pardon power itself. Readers were provided with no additional understanding of the pardon, its historical precedence, or even the unique position of the Nixon pardon itself. Four articles were coded as having negative tones. No articles were coded as having a positive tone. While the vast majority of articles are coded as neutral, there are no positive articles to offset the negative ones. This results in this set of articles having an overall negative net tone (positive stories less negative stories). The September 9, 1974 front page of the New York Times had five articles about the pardon in addition to the text of President Ford’s Pardon Proclamation and President Nixon’s statement of acceptance. Looking at the lead articles, I find one that reports on President Ford’s action, his reasons, and some initial reactions to the pardon. Another article reports on Nixon’s response to President Ford’s pardon. The other stories on the front page related to the pardon report on various reactions including Press Secretary Jerald terHorst’s resignation, the reactions of people in New York’s Foley Square, and Special Prosecutor Leon Jaworski’s acceptance of the decision. The Jaworski article titled “Jaworski Won’t Challenge Pardon, Spokesman Says,” comes the closest to providing any information on the act of pardoning itself. “The special prosecutor ‘accepts the decision,’ said John Barker, the spokesman. ‘He thinks it’s within the President’s power to do it. His feeling is that the President is exercising his lawful power, and he accepts it.” The article goes on to offer a contrary opinion provided by Senator Edmund S.

90% agreement rate. This suggests a fairly high degree of confidence in the content evaluations completed for this analysis.

Muskie. “’It could be challenged,’ declared Mr. Muskie, adding ‘there are those who say that it ought to be challenged, lest the precedent be established in an undesirable way.’” We find similar coverage on the front page of the Washington Post on September 9, 1974. Five articles cover the pardon. We find an overview of Ford’s action, the Jerald terHorst resignation, Leon Jaworski’s reaction, and the reaction of others to the pardon. Like the New York Times coverage, none of these stories provides context or background information on the pardon power. Turning to the four articles coded as negative in tone, we find all four appearing in the editorial pages of the New York Times. The first appeared on September 9, two on September 10, and one on September 11. “The Failure of Mr. Ford” was the first and the longest criticism of Ford’s use of the pardon. The Times editorial opens its criticism by calling the pardon “an inappropriate and premature grant of clemency.” The opening paragraph closes with an even stronger statement, calling the pardon a “profoundly unwise, divisive, and unjust act.” The primary challenge to the pardon in this editorial is based on its use to circumvent the judicial process. Calling for a full adjudication of the Nixon case, the editors write “nothing less would satisfy the natural sense of justice of the American people and of a Government founded upon principles of equality and legality…If clemency had followed conviction rather than preceded it, there would have been wide acceptance of President Ford’s exercise of his power to pardon.” The editors also suggest the pardon was granted in part out of political loyalty that

emerged from “secret and discreditable plea bargaining” with Nixon. The editorial concludes with a strong condemnation of President Ford’s pardon. Instead of adhering to those wise public pronouncements, Mr. Ford has now moved-secretly and suddenly to block the normal workings of justice. It is an act of flagrant favoritism. It can only outrage and dishearten millions of his fellow citizens who thought that at last the laws of this nation would be enforced without fear or favor. This blundering intervention is a body blow to the President’s own credibility and to the public’s reviving confidence in the integrity of its Government.

A second New York Times editorial appeared on September 10, 1974. “Pardon for What?” again criticized the pardon for subverting justice, especially the constitutional process of impeachment. “Now, by President Ford’s ill-considered action, the nation is in danger of losing even that note of clarity in a morass which has confused and divide a frustrated populace for two long years. Without the firm seal of a conclusive judgment by constitutional institutions, the way will be open wide for a subsequent demagogic rewriting of history that could poison the political atmosphere for generations to come.” An op-ed piece written by Fred M. Hechinger, “Nixon’s ‘Mistakes,’” appeared in the New York Times on September 10, 1974 and raised several issues with the pardon. He first challenged the pardon on ethical grounds. He wrote, “a President may ignore the law and the Constitution, evade the impeachment process and escape judgment, if he can arrange to pardon-

bargain with his chosen successor.” He continued, “Vague as the Constitution is concerning presidential pardon, legal logic and the English language suggests that a pardon should apply to an act of wrongdoing that has either been proved or admitted.” He concluded, “one limited but practical step to block the historical whitewash as a sequel to the criminal cover-up would be for the Senate to reassert its role in keeping the proper check on the powers of the executive by voting approval of the Articles of Impeachment…” Finally, a September 11th Times editorial, “Nightmare Compounded,” criticized the use of the pardon for Nixon and the possibility that Ford would pardon all of the individuals associated with Watergate-related crimes. “It is precisely because the dangers inherent in indiscriminate and ill-considered invocation of the pardoning power are so overwhelming that it has been used only under extraordinary circumstances across the centuries of English and American jurisprudence. Each exercise of executive clemency involves risk to the concept of equal justice, except in instances where the original conviction was demonstrably unjust.” Although to suggest pardons have been used “only under extraordinary circumstances” is historically inaccurate, this editorial does raise legitimate questions about the use of the pardon power and casts something of a negative light on its use in this particular case. We cannot draw too many conclusions from the print media coverage of the Nixon pardon because the vast majority of the articles were neutral with respect to the pardon power itself. Let me move forward nearly 30 years to President Bill Clinton’s highly controversial pardon of Marc Rich.

MARC RICH PARDON BACKGROUND. Although the historical implications are far less important than Richard Nixon’s, Marc Rich’s story has its own intrigue, political power brokers, and entanglements with the U.S. justice system. How did an international commodities trader find himself at the center of the most controversial pardon since Richard Nixon? Briefly, let me trace the story of one of America’s least well-known fugitives. Marc Rich’s family emigrated to the United States shortly after his birth in 1934. Rich’s family fled Antwerp and ultimately settled in Kansas City, Missouri in 1944. Six years later, the family moved to Queens, New York where Rich would graduate from Manhattan’s Rhodes School. After two years of college, Philipp Brothers, the largest raw materials trading company in the world at that time, hired Rich.146 Rich was brought in as a lehrling147 to learn the commodities trading business. He learned the trading business under Philipp Brothers’ top American executive, Ludwig Jesselson. Jesselson fostered Rich’s flair for the deal and moved him around the world honing his skills as a commodity trader. In the late 1960s, Rich and fellow Philipp Brothers employee Pincus “Pinky” Green began trading oil and created what is now know as the spot oil market. This was a high-risk venture as the producing nations and the seven major oil companies controlled virtually all of the oil produced at that time. Although Rich and Green were making millions of dollars for Philipp Brothers, the board of directors became concerned when Rich committed

146 Copetas, A. Craig. 1985. Metal Men: Marc Rich and the 10-Billion-Dollar Scam. New York: G.P.Putnam’s Sons. 49. 147 A Yiddish word used to describe apprentices learning to be traders.

$150 million dollars to buy oil without having a purchaser lined up.148 In 1973, Rich and Green led an internal mutiny over compensation and left Philipp Brothers to establish their own trading company, Marc Rich + Co. AG in Zug, Switzerland. Rich and Green built their company and cash reserves before moving aggressively into the oil markets. For example, Green was able to strike a long-term deal with the Iranian National Oil Company in 1974 for 200,000 barrels of oil per day.149 With the collapse of world oil markets in the late 1970s, it is estimated that Marc Rich + Co. AG made its first billion. Rich made deals with Iran, South Africa, the Soviet Union, Cuba, Libya, Iraq, Angola, Romania, and Serbia.150 These dealings attracted the attention of the U.S. government and led to a series of investigations in the early 1980s. The Fraud Section of the Criminal Division of the Department of Justice referred a lead on Marc Rich to the Southern District of New York.151 This investigation led to a series of questionable oil deals designed to boost profits and hide taxable income. In addition, Rich’s dealings with Iran during the American hostage crisis in Iran were prohibited without a special license from the Department of Treasury. Rich hired a bevy of lawyers to combat the investigation and was held in contempt of court for refusing to provide millions of subpoenaed documents to the government investigators. A 51- count indictment was handed down in September 1983. The charges

148 Copetas, Metal Men. 90. 149 Ibid. 111. 150 United States House of Representatives, Committee on Government Reform. March 14, 2002. Justice Undone: Clemency Decisions in the Clinton White House. 11-16. 151 Ibid. 17.

included defrauding the Internal Revenue Service, fraud, wire fraud, racketeering, and tax evasion. Rich and Green had left the United States earlier in the year and refused to return to face the charges. An updated indictment in 1984 would add “trading with the enemy” as personal charges against both Rich and Green.152 The charges against Marc Rich + Co AG were settled in 1984 with a guilty plea and fines approaching $200 million. However, Rich and Green remained fugitives with their personal indictments still unresolved. Numerous attempts to capture and extradite Rich failed. He remained primarily in Zug, Switzerland where he was protected by Swiss law. The issues surrounding Rich and Green became more complicated with attempts to renounce their U.S. citizenships. Rich’s citizenship remains in dispute to this day. “Marc Rich was one of those who took a shot at controlling the game. He was much more than a commodity trader; he was the Metal Man, the grand dragon of a daring and tightly knit lodge of 2,000 men described bravely as ‘barbarians’ by London Metal Exchange Chairman Michael Brown. Rich was the most successful, intimidating, and says the United States government, corrupt member of this international fraternity, the man called El Matador because of his refined talent and enthusiasm in killing bull markets when they did not suit the designs of his global empire.”153 On January 20, 2001, President Bill Clinton issued 140 executive pardons (and 36 commutations). The list of pardon recipients included: Susan McDougal of Whitewater fame, Clinton’s former Secretary of Housing and

152 Ibid. 22. 153 Ibid. 23.

Urban Development Henry Cisneros, heiress Patricia Hearst Shaw, his own brother Roger Clinton (see Appendix 4), and the fugitive Marc Rich. A firestorm followed these last minute pardons, and none attracted more attention than Marc Rich’s. As was done with the Nixon pardon, let me assess the media coverage that followed this highly controversial pardon. CONTENT ANALYSIS. In order to evaluate the media coverage and its presentation of the Rich pardon, I collected a total of 41 articles published between January 21, 2001 and May 2001 (see Appendix 8 for complete list of articles). The articles were initially drawn from the New York Times and the Washington Post. A total of 13 articles were found in the New York Times, and seven in the Washington Post. Because of this limited number, a broader search of wire service and regional papers generated another 21 articles that are included in this analysis. Like the Nixon articles, the full set was evaluated using a three-point scale (positive, neutral, or negative) to arrive at an overall net tone. Evaluating only the New York Times and the Washington Post articles, I found two positive articles, ten neutral articles, and eight negative articles for an overall score of –6 and a negative net tone.154 When I expand the analysis to include all 41 articles, the magnitude of the negative net tone increases substantially. Evaluating all 41 articles, I found five positive articles, 13 neutral articles, and 23 negative articles yielding a –18 overall score. Nearly six out of ten (56% or 23 articles) of the Rich pardon articles reviewed were coded as negative in tone. Only 32% (13 articles) were coded as neutral as compared with over 90% of the Nixon pardon articles that were coded as

neutral. In another interesting contrast, while none of the Nixon articles were coded as positive, five (12%) of the Rich articles presented the act of pardoning in a positive tone. Let me now look at the negatively coded articles and how the pardon power was presented following the Marc Rich pardon. With the inauguration of George W. Bush taking place, the pardons issued by outgoing President Clinton were not the major story lines like the Nixon pardon had been. However, both the New York Times and the Washington Post had articles on January 21, 2001 covering the Clinton pardons. Both of the initial New York Times articles were neutral in tone, but the Washington Post went negative immediately. Staff Writers Amy Goldstein and Susan Schmidt described a “frenzied and secretive process” and quoted Pardon Attorney Roger Adams saying, “I’ve never seen anything like this.” Adams was further quoted, “Many people on the list didn’t even apply for pardons.” The Washington Post ran a second article on January 22, 2001 titled, “Key to Presidential Pardon is Access.” Slevin and Lardner wrote, Marc Rich would not seem an obvious candidate for a presidential pardon. Charged in 1983 with conducting the largest tax evasion scheme in U.S. history, Rich fought extradition from Switzerland, never came home and never faced trial. He continued to make millions-and give millions to charity-but dared not face the witnesses against him. Yet outgoing President Clinton granted Rich and former business partner Pincus Green a pardon just hours before he left the White House. Exercising a presidential prerogative that requires no detailed

154 Two positive article less eight negative articles equals a score of –6.

explanation and permits no higher review, Clinton smiled broadly on a chosen few Saturday, making points of a political and personal kind.

In both of these initial Washington Post articles on the Rich pardon, we see the pardon power being characterized as a secretive process used for dubious ends. On January 25, 2001, the Washington Post ran an opinion piece written by former Pardon Attorney Margaret Colgate Love. While Ms. Love was highly critical of the last-minute Clinton pardons, she provided an informed defense of presidential pardon power. She criticized the Clinton use of the pardon writing, “President Clinton seemed uninterested in his own official obligation to forgive. And so perhaps it is no wonder that he saved the granting of pardons until the final hours, as if to confirm his concept of pardon as payback or payoff.” The remainder of her opinion piece is focused on reforming “our savage and unyielding laws on sentencing for drug offenses” and “an overhaul of the way the pardon power is administered by the White House.” I will revisit her recommendations in my concluding chapter. One final article from the Washington Post appeared on February 15, 2001. The article, “Criminal Probe of Pardon has Begun, Source Says,” reports on the criminal investigation opened by federal prosecutors in New York into the Marc Rich pardon. Its most damning line with respect to the Rich pardon comes from an unidentified source, “Simply stated, it’s following the cash.”

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While the Washington Post went negative early on the Rich Pardon, the initial New York Times articles were neutral. “Pardons on the Sly” was an editorial that ran on January 25, 2001 and took a strong stance against the unchecked usage of pardon power by suggesting “that Congress might need to review the president’s unilateral power to dispense pardons.” On February 18, 2001, President Clinton took the unusual step of responding to critics with a lengthy defense of the Marc Rich pardon in the New York Times. Clinton recognizes the sometimes controversial nature of the pardon and lists a number of other controversial presidential pardons including Harding’s pardon of Eugene Debs, Nixon’s commutation of James Hoffa, Ford’s pardon of Nixon, Carter’s amnesty for Vietnam draft resisters, and Bush’s pardon of Casper Weinberger. He then lays out eight reasons for granting the Marc Rich pardon. He denies any quid pro quo for the pardon grant. He concludes, “I am accustomed to the rough and tumble of politics, but the accusations made against me in this case have been particularly painful…” On the following day, February 19, 2001, two articles and an editorial appeared in response to President Clinton’s op/ed defense. Both of the articles and the editorial took decidedly negative stances on the Rich pardon. “Clinton Pardon Statement Questioned” focused on the behind the scenes lobbying and the potential quid pro quo of financial support in exchange for the pardon. “Clinton’s Defense of Pardons Brings Even More Questions” challenged the reasons Clinton cited for his decisions. The New York Times Editorial “Mr. Clinton’s Explanation,” calls into doubt Clinton’s reasons for the granting the pardon to an “unsuitable

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candidate.” It concludes, “The story of this pardon begins and ends with the money and the access afforded by money. That is the unique circumstance that will linger in the minds of Americans whenever they contemplate this gross misuse of solemn presidential responsibility.” Looking beyond the New York Times and the Washington Post, I found even stronger negative tones towards the pardon. These articles and commentaries were collected from the Associated Press and Reuters wire services, the Boston Globe, the Chicago Tribune, the Cincinnati Enquirer, the Houston Chronicle, and The Star Ledger (New Jersey). Evaluating these 21 additional articles, I found three positive articles, three neutral articles, and 15 negative articles. With nearly three quarters of the articles coded as negative (71%), the overall net tone is clearly negative (-12). Many of the titles themselves set a negative tone: • “Rich’s Wife Denies Money-Pardon Link,” • “Pardon Him Not,” • “Promiscuous Use of the Pardon,” • “Timing of Clinton Pardons Raises Questions,” • “Clinton Pardons: A Thumb on the Scales of Justice,” • “Pardon Attorney Says He Learned About Rich Case late,” • “Criminal Probe of Pardon Has Begun,” • “The Sorry Tale of Bill’s Pardons,” and • “The people’s ‘sense of smell.’”

The overall negative tone of these articles focused on two primary issues: (1) that Marc Rich was able to purchase a presidential pardon through

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the political contributions made by his former wife Denise Rich, and (2) that the Marc Rich pardon process inappropriately circumvented the established pardon application and review process administered by the OPA. There were numerous references to the “estimated $450,000” contribution to the Clinton library and “more than a million dollars to the Democratic Party” given by Denise Rich. Additional references referred to Pardon Attorney Roger Adam’s testimony that he was unaware of the Rich pardon application until he received a midnight telephone call on January 19, 2001. A Chicago Tribune editorial on January 26, 2001 wrote, “…the way the outgoing president handled them (pardon grants) seemed calculated to discredit the whole idea of executive clemency. If you wanted a presidential pardon, it was a good idea to have a political connection to Clinton,” reinforcing the idea that the pardon is a quid pro quo. The Los Angeles Times covered the process issues in a January 28, 2001 article by Jonathan Peterson and Lisa Getter. They describe the last day pardons as “a process that in several cases did not fit Justice Department guidelines.” They described Justice Department officials as being “stunned by the pardon of Marc Rich” and “even when the Justice Department was included in pardon considerations, the stampede-like quality disturbed some familiar with particular cases.” Arguably, the most negative commentary was published by OregonLive.com (the online version of The Oregonian). “The people’s ‘sense of smell’” describes the pardon as a “royal throwback.” “Distributing favors around the realm in the waning hours of his presidency last weekend, Bill Clinton wielded the pardon like a royal scepter – and a presidential disgrace.” The commentary continues with a list of pardon recipients

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(including Marc Rich) and their specific connections to Bill and Hillary Clinton. It concludes with the inappropriate process theme, “Just as bad as the pardons and commutations themselves, in all of these cases Clinton flouted protocol.” While the print media coverage of the Marc Rich pardon was resoundingly negative in tone, three of the positive articles merit some attention. “The Power to Pardon Is a President’s Right” by Dan Ackman defends the pardon and criticizes the “chorus of complaints” following the end of term Clinton pardons. He writes, “The power to pardon, derived from the rights of kings, is by nature arbitrary. Its use is at the executive’s unfettered discretion. The president may do justice as he sees fit, overriding the application of general laws in odd cases. By the same token, it should be noted, the decision to prosecute in a given case is also unreviewable.” He concludes, “Giuliani and other ex-prosecutors complain they were not consulted…But the power to pardon has always been solitary and absolute…If the Constitution grants him the power to pardon, we should all be inclined to grant his use of it the benefit of the doubt.” L. Anthony Sutin, Dean of the Appalachian School of Law writes a strong defense of the pardon when administered through the Department of Justice’s established review process. He praises the review process for its completeness, consistency, and depoliticized result. The value of using an established review process is highlighted by the non-routine pardons such as the Marc Rich grant. Finally, Jeff Jacoby of the Boston Globe takes advantage of the outrage following the Rich pardon to revisit the Nixon pardon on May 29, 2001. “It

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has taken a while, but Ford’s pardon of Nixon is all right with most people now. History often changes hearts and minds that way, elevating villains about whom nothing good can be said into human beings whose motives can be seen as reasonable – even, at times, courageous.” CONCLUSION. This chapter has focused on the print media coverage of two high-profile non-routine pardons. In doing so, I have considered the third hypothesis identified in this analysis:

H3: Mass media coverage discourages the use of presidential pardon power.

In the case of Richard Nixon, I found the media coverage to be slightly negative in net tone. However, the vast majority of the articles were neutral in tone with criticism of the decision but little criticism of the presidential power to pardon. The Marc Rich pardon yielded very different results with more than half of the articles being negative in tone. In the Rich case, I found not only criticism of the decision to grant the pardon, but also high levels of criticism aimed at the pardon power itself. The Rich pardon was often framed in a negative light with little contextual or historical understanding provided to the reader. In this case, the pardon became little more than means of political payback to favorites and cronies. Even the political cartoonists155 presented the pardon in a negative light.

155 Payne, Henry. September 4, 1999. Used with permission of United Media.

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Where do these two cases leave me with respect to my hypothesis that mass media coverage discourages the use of presidential pardon power? Clearly, I am unable to draw any definitive conclusions regarding specific effects of the media and the exercise of presidential pardon power. However, the overwhelming negative reaction to the Marc Rich pardon may give a president reason to pause before granting another non-routine pardon. If indeed the president’s reputation and the power to persuade are important components of the modern presidency, a president may choose not to expend valuable political capital on a potentially controversial pardon. Of course this risk does not apply to presidents approaching the end of their term, and thus I would expect non-routine pardons to occur in the future. The media coverage of these two cases may also show something in the evolution in media coverage itself. There were no 24-hour news channels needing to fill the airwaves at the time of the Nixon pardon. The print media 10 6

played an important role with the Washington Post leading much of the Watergate investigation. The scandal-prone Clinton presidency had provided the media with a lot of material for eight years. Cable television with 24-hour news and the internet changed the speed at which the news cycle itself moved. Many of the Clinton scandals first appeared on the internet before more mainstream media sources picked up the stories. These changes coupled with the Clinton scandals may have primed the media for a swift and negative reaction to the Rich pardon. Regardless of the reasons, it is clear that a president can place his reputation on the line when granting a controversial executive pardon.

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7 CONCLUSION

The U.S. presidency has been the object of study for scholars for decades. Despite the breadth and depth of presidential studies, the power to pardon has rarely been considered a topic worthy of scholarly analysis. The only comprehensive analysis of presidential pardons was published in 1941 (Humbert). Nearly 50 years passed before another book length analysis of pardon power would be written (Moore 1989). My analysis seeks to build on these works and to systematically analyze the more recent trend towards disuse of the pardon power. This chapter assesses my findings and considers the implications of this research. I began with three hypotheses in an effort to explain the rapid decline of presidential pardon grants since 1980. The first hypothesis was that the pardon is obsolete. While I cannot definitively say the pardon is obsolete, I can say that there has been a steady decline in pardon requests and pardon grants since 1900. The trend toward disuse has accelerated since 1980 and shows no signs of slowing. President George W. Bush has not only continued the trend, but set new standards for pardon inactivity. Bush has granted 12 pardons and no commutations since taking office in 2001. Table 2 shows the number of pardons grants approved by every president since Truman during their first three years in office.

Table 2: Pardon Grants During First Three Years of Presidency

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President Pardons Avg/Yr Truman 735 245.0 Eisenhower 132 44.0 Kennedy 391 130.3 Johnson 925 308.3 Nixon 522 174.0 Ford 404 134.7 Carter 319 106.3 Reagan 181 60.3 Bush 39 13.0 Clinton 56 18.7 Bush 12 4.0 President George W. Bush is continuing an approach to pardoning that he established while governor of Texas. As governor, Bush issued only 18 pardons during his six years in office. This was the lowest number of pardons by a Texas governor since the 1940s. Bush became particularly wary of the pardon following his 1995 pardon of Steven Raney. Raney was pardoned for marijuana possession but following the pardon was charged with stealing cocaine from a police drug bust. Bush said “I’ve got very strict standards for pardons…we don’t pardon anybody that committed a violent crime.”156 Thus, there is no reason to expect pardon usage to increase in the foreseeable future. My second hypothesis considered the effects of administrative changes to the pardon process. My findings here indicate there may be a connection between administrative procedures and the number of pardons granted. Changes made during the Reagan Administration were followed by a noticeable decrease in clemency petitions and grants. Changes in eligibility

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seemed to have negatively impacted the number of clemency requests submitted. The Clinton Administration relaxed eligibility requirements and did experience an increase in clemency, particularly commutation, requests. The Clinton Administration also modified the rules governing the pardon process by adding a significant role for victims to be involved in the pardon review process. It is interesting to note that the victim’s rights sections were added to the Code of Federal Regulations following an effort by Congress to change the clemency review process used by the Office of the Pardon Attorney. Following the controversial pardoning of 16 people who were members of a Puerto Rican separatist organization called the Armed Forces for National Liberation (FALN) in August 1999, Senate Bill 2042 was introduced into the U.S. Senate. The bill was titled “The Pardon Attorney Reform and Integrity Act” and was of questionable constitutional validity. The bill never made it out of the Senate, but the Clinton Administration did adopt many of the victim’s rights provisions contained in the Senate bill. It is difficult to assess the impact of the victim’s rights provisions because of its relatively recent adoption. However, it is not unreasonable to suggest that allowing victims to participate in the clemency review process could make it more difficult to obtain a favorable grant from a politically sensitive president. The third hypothesis considered the impacts of the print media on the pardon process. Here I found a substantial shift in way the pardon has been presented by the press over time. The two cases studies showed the press coverage of the Marc Rich pardon was far more negative than the coverage

156 “Bush’s pardons rare but not without controversy,” Abilene Reporter-News, September 23, 1997.

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of the Richard Nixon pardon. It is important to reiterate that these two case studies were non-routine pardons and thus attracted far more media attention than the more “routine” pardon activities. However, if as the effects literature suggests that our views and understanding of an issue can be shaped and formed by the press, the increasingly negative portrayal of the pardon in these non-routine cases could spillover onto pardons in general. Our general understanding of the pardon may then be drawn from these fairly unique non-routine actions rather than from the far more common pardons that make their way through the Office of the Pardon Attorney process. The “modern” president cannot help but be cognizant of the potential price to be paid for this highly negative portrayal of presidential pardon powers. Former Pardon Attorney Margaret Colgate Love recognized this problem writing, “pardons have become so infrequent that each new grant is regarded with suspicion and subjected to intense scrutiny, no matter how apparently innocuous.”157 Looking at all of these findings, are we any closer to understanding why presidential pardon power has fallen into this state of disuse? While less than definitive, I would argue that the factors noted above have worked in combination to make presidential pardon grants both more difficult to obtain and less attractive for presidents to offer. Jack Levin is director of the Brudnick Center on Violence and Conflict at Northeastern University and suggests a tougher law and order mentality is also at play as, “Americans want defendants to serve every minute of their sentences.”158 Clearly

157 Love, Margaret Colgate. “Rescuing the Pardon Power.” The Washington Post, January 25, 2001. 158 Fields, Gary. “Bush Is Scrooge When It Comes to Pardons,” Wall Street Journal, December 24, 2003.

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presidents can be a reflection of public sentiment and may choose to govern accordingly. What are the limitations of this research? The inability to systematically evaluate the executive clemency process used by the OPA significantly limits the scholarly study of presidential pardons. I spoke with several of the staff attorneys at the OPA during the course of this research. While each provided assistance in obtaining data and historical information, none would provide much insight into the process itself. I also wrote to four of the five former presidents (President Reagan was excluded do to his health) asking about their understanding and approach to pardoning while in office. President Clinton’s office never responded. President Bush’s office declined my request. President Ford’s office called to wish me well but declined my request due to the President’s advancing age and limited schedule. Only President Carter responded with a brief but insightful response. The inability to obtain information from these primary decision makers forces scholars to use secondary sources and thus makes any pardon analysis somewhat speculative. Where might this research lead future scholarly work in the study of pardon power? First, there is no reason to be optimistic that presidential pardon power will provide much fertile ground for scholars in the foreseeable future. Studying a closely guarded process is very difficult and will be even more difficult with little or no activity. We should expect the occasional non- routine pardon to create short-term interest depending upon the nature of the pardon itself (who received it and why).

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Second, this type of analysis may be useful for the scholarly study of gubernatorial pardons. Governors issue far more pardons and commutations each year than the president. This makes state-level actions a potentially fertile ground for the study of pardons as governors face many of the same concerns as the president. An initial study might test whether gubernatorial pardons have followed the presidential trend towards greatly reduced usage. A third area of pardon study might be to investigate the role Members of Congress play, if any, in the pardon process. For example, as a form of constituent casework, do legislators assist clemency applicants or make recommendations on their behalf? While I focused on the print media in this research, a similar analytical framework applied to television coverage might yield different results. With the rise of a wide variety of news/opinion/investigative shows such as ABC’s “Primetime,” NBC’s “Dateline,” CBS’s “60 Minutes II,” and cable shows such as CNN’s “Crossfire” and Fox News’ “Hannity & Colmes,” there are numerous sources now available for analysis. One final area of interest might be to survey those who have received a presidential pardon to better understand their experiences. We might ask, how did they learn of the pardon process? What were their reasons for applying for executive clemency? How long was their clemency application in process? Did you need or use assistance during your clemency process? All of these questions would provide an otherwise unknown view of the presidential pardon process. FINAL COMMENTS. While I have attempted to identify the causes of the declining use of the presidential pardon, I want to conclude with two

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normative elements of pardon power. First, when is a pardon grant appropriate? As I have shown, there are guidelines and rules that direct the clemency process. The Marc Rich pardon demonstrated that access outside the establish guidelines can raise significant questions. These questions raise the second normative element, what are the appropriate limits of administrative discretion? Former Pardon Attorney Margaret Colgate Love offers four suggestions to “provoke an overhaul of the way the pardon power is administered in the White House and the Justice Department.”159 1. The President should decide cases on a regular basis when he can be held properly accountable for his actions. 2. The process ought to be confidential…not vetted in the press. 3. The Attorney General’s role should be strengthened. Prosecutors have the upper hand with the process currently falling under the Deputy Attorney General. 4. The pardon should be used through the bully pulpit of the presidency to speak about criminal justice issues.

Love’s call addresses the need for using the pardon, the reliance on process for consistency, and the use of the pardon as a presidential tool to influence policy. Her suggestions address both of the normative issues of the pardon, appropriate usage and accountability. As I noted earlier, President Jimmy Carter was the only former president to respond to my written request. His response was brief but reiterates the ideas raised by Margaret Colgate Love. President Carter wrote:

159 Love. “Rescuing the Pardon Power.”

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The executive power to pardon is unlimited and cannot be challenged. There are many instances when original trials and sentences were excessively abusive because of transient political circumstances, when revised laws make previous sentences inappropriate, when prisoners are obviously rehabilitated and prepared for reentry into society, when good works in prison have earned special consideration, or when justice has been served in other ways.

I found this authority to be well advised and helpful. I never initiated a move to pardon an inmate, but responded to carefully considered recommendations from the Department of Justice. When these lists came to me, I went over them individually with my White House legal advisors and made final decisions.

There have been abuses of the authority, as when their bosses pardoned top political officeholders for heinous crimes. (I believe Ford’s pardon of Nixon was appropriate.)

In recent years, except for the self-serving pardons mentioned above, the pardon power is underused. This is probably because of a nationwide inclination for excessive punishment of convicted criminals, most of whom are guilty of non-violent crimes involving drugs.

The pardon is one tool that the modern president is failing to use. Through this lack of usage, the president is missing the opportunity to

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publicly shape criminal justice policies, to demonstrate the effective use of discretionary power, and to perhaps correct the errors of a some times unjust judicial system.

11 6 APPENDIX 1

Presidential Pardons and Commutation: 1900-2001

Commutations Avg Avg Avg Total Rqsts % Party President (Terms served) Pardons & Remissions Total P&C # Years Pardons Comm P&C Acted Upon Granted R McKinley (P) 291 155 446 2.00 146 78 223 1,497 29.8% R Roosevelt, T (1+) 668 431 1,099 6.00 111 72 183 3,980 27.6% R Taft (1) 383 448 831 4.00 96 112 208 2,030 40.9% D Wilson (2) 1,065 1,689 2,754 8.00 133 211 344 6,967 39.5% R Harding (<1) 347 555 902 3.00 116 185 301 3,418 26.4% R Coolidge (1+) 730 898 1,628 5.00 146 180 326 6,687 24.3% R Hoover (1) 715 546 1,261 4.00 179 137 315 5,861 21.5% D Roosevelt, F (3+) 2,721 966 3,687 12.25 222 79 301 13,261 27.8% D Truman (1+) 1,913 131 2,044 7.75 247 17 264 4,931 41.5% R Eisenhower (2) 1,110 47 1,157 8.00 139 6 145 4,336 26.7% D Kennedy (<1) 472 103 575 2.75 172 37 209 1,406 40.9% D Johnson (1+) 960 227 1,187 5.25 183 43 226 4,017 29.5% R Nixon (1+) 863 63 926 5.50 157 11 168 3,540 26.2% R Ford (<1) 382 27 409 2.50 153 11 164 1,309 31.2% D Carter (1) 534 32 566 4.00 134 8 142 2,624 21.6% R Reagan (2) 393 13 406 8.00 49 2 51 3,210 12.6% R Bush (1) 74 3 77 4.00 19 1 19 1,182 6.5% D Clinton (2) 396 63 459 8.00 50 8 57 3,501 13.1%

Totals 14,017 6,397 20,414 100.00 73,757 19.0%

Annual Avg 140 64 204 738 27.7%

Republicans 5,956 3,186 9,142 52 115 61 176 Democrats 8,061 3,211 11,272 48 168 67 235 14,017 6,397 20,414 100.00 140 64 204

117 APPENDIX 2

List of U.S. Pardon Attorneys

1892-1893 C.F. Scott, Attorney in Charge of Pardons 1894-1896 William Endicott, Jr. 1897-1899 John H. Campbell 1900-1904 James S. Easby-Smith 1905-1907 Peyton Gordon 1908-1935 James A. Finch 1936 Robert H. Turner, Acting Pardon Attorney 1937-1953 Daniel M. Lyons 1954-1955; 1957 Kenneth Harvey, Acting Pardon Attorney 1956; 1958-1967 Reed Cozart 1968-1969 T. Oscar Smith 1970-1976 Lawrence Traylor 1977-1979 John Stanish 1980-1990 David Chew Stephenson (Acting: 1980-1984) 1991-1997 Margaret Colgate Love 1998-Present Roger C. Adams

118 APPENDIX 3

United States Attorneys' Manual

1-2.110 Office of the Pardon Attorney

The Pardon Attorney assists the President in the exercise of his power under Article II, Section 2, Clause 1 of the Constitution (the pardon clause). See Executive Order dated June 16, 1893 (transferring clemency petition processing and advisory functions to the Justice Department), the Rules Governing the Processing of Petitions for executive Clemency (codified in 28 CFR Sections 1.1 et seq.), and 28 CFR Sections 0.35 and 0.36 (relating to the authority of the Pardon Attorney). The Pardon Attorney, under the direction of the Deputy Attorney General, receives and reviews all petitions for Executive Clemency (which includes pardon after completion of sentence, commutation of sentence, remission of fine and reprieve), initiates and directs the necessary investigations, and prepares a report and recommendation for submission to the President in every case. In addition, the Office of the Pardon Attorney acts as a liaison with the public during the pendency of a clemency petition, responding to correspondence and answering inquiries about clemency cases and issues. The following sets forth guidance on clemency matters.

1-2.111 Role of the United States Attorney in Clemency Matters

The Pardon Attorney routinely requests the United States Attorney in the district of conviction to provide comments and recommendations on clemency cases that appear to have some merit, as well as on cases that raise issues of fact about which the United States Attorney may be in a position to provide information. Occasionally, the United States Attorney in the district in which a petitioner currently resides also may be contacted. In addition, in cases in which the petitioner seeks clemency based on cooperation with the government, the Pardon Attorney may solicit the views of the United States Attorney in the district(s) in which the petitioner cooperated, if different from the district of conviction. While the decision to grant clemency generally is driven by considerations that differ from those that dictate the decision to prosecute, the United States Attorney's prosecutive perspective lends valuable insights to the clemency process.

The views of the United States Attorney are given considerable weight in determining what recommendations the Department should make to the President. For this reason, and in order to ensure consistency, it is important that each request sent to the district receive the personal attention of the United States Attorney. Each petition is presented for action to the President with a report and recommendation from the Department, and the recommendation by the United States Attorney is included in this report.

119 The United States Attorney can contribute significantly to the clemency process by providing factual information and perspectives about the offense of conviction that may not be reflected in the pre-sentence or background investigation reports or other sources, e.g., the extent of the petitioner's wrongdoing and the attendant circumstances, the amount of money involved or losses sustained, the petitioner's involvement in other criminal activity, the petitioner's reputation in the community and, when appropriate, the victim impact of the petitioner's crime. On occasion, the Pardon Attorney may request information from prosecution records that may not be readily available from other sources.

As a general matter, in clemency cases the correctness of the underlying conviction is assumed, and the question of guilt or innocence is not generally at issue. However, if a petitioner refuses to accept guilt, minimizes culpability, or raises a claim of innocence or miscarriage of justice, the United States Attorney should address these issues.

In cases involving pardon after completion of sentence, the United States Attorneys is expected to comment on the petitioner's post-conviction rehabilitation, particularly any actions that may evidence a desire to atone for the offense, in light of the standards generally applicable in pardon cases as discussed in the following section. Similarly, in commutation cases, comments may be sought on developments after sentencing that are relevant to the merits of a petitioner's request for mercy.

In pardon cases, the Pardon Attorney will forward to the United States Attorney copies of the pardon petition and relevant investigative reports. These records should be returned to the Pardon Attorney along with the response. In cases involving requests for other forms of executive clemency (i.e., commutation of sentence or remission of fine), copies of the clemency petition and such related records as may be useful (e.g., pre-sentence report, judgment of conviction, prison progress reports, and completed statement of debtor forms) will be provided.

The Pardon Attorney also routinely requests the United States Attorney to solicit the views and recommendation of the sentencing judge. If the sentencing judge is retired, deceased, or otherwise unavailable for comment, the United States Attorney's report should so advise. In the event the United States Attorney does not wish to contact the sentencing judge, the Pardon Attorney should be advised accordingly so that the judge's views may be solicited directly. Absent an express request for confidentiality, the Pardon Attorney may share the comments of the United States Attorney with the sentencing judge or other concerned officials whose views are solicited.

The United States Attorney may support, oppose or take no position on a pardon request. In this regard, it is helpful to have a clear expression of the office's position. The Pardon Attorney generally asks for a response within 30 days. If an unusual delay is anticipated, the Pardon Attorney should be advised when a response may be expected. If desired, the official views of the United States Attorney may be supplemented by separate reports from 120 present or former officials involved in the prosecution of the case. The United States Attorney may of course submit a recommendation for or against clemency even if the Pardon Attorney has not yet solicited comments from the district. The Pardon Attorney informs the United States Attorney of the final disposition of any clemency application on which he or she has commented.

1-2.112 Standards for Considering Pardon Petitions

In general, a pardon is granted on the basis of the petitioner's demonstrated good conduct for a substantial period of time after conviction and service of sentence. The Department's regulations require a petitioner to wait a period of at least five years after conviction or release from confinement (whichever is later) before filing a pardon application (28 CFR Section 1.2). In determining whether a particular petitioner should be recommended for a pardon, the following are the principal factors taken into account.

1. Post-conviction conduct, character, and reputation. An individual's demonstrated ability to lead a responsible and productive life for a significant period after conviction or release from confinement is strong evidence of rehabilitation and worthiness for pardon. The background investigation customarily conducted by the FBI in pardon cases focuses on the petitioner's financial and employment stability, responsibility toward family, reputation in the community, participation in community service, charitable or other meritorious activities and, if applicable, military record. In assessing post-conviction accomplishments, each petitioner's life circumstances are considered in their totality: it may not be appropriate or realistic to expect "extraordinary" post-conviction achievements from individuals who are less fortunately situated in terms of cultural, educational, or economic background.

2. Seriousness and relative recentness of the offense. When an offense is very serious, (e.g., a violent crime, major drug trafficking, breach of public trust, or white collar fraud involving substantial sums of money), a suitable length of time should have elapsed in order to avoid denigrating the seriousness of the offense or undermining the deterrent effect of the conviction. In the case of a prominent individual or notorious crime, the likely effect of a pardon on law enforcement interests or upon the general public should be taken into account. Victim impact may also be a relevant consideration. When an offense is very old and relatively minor, the equities may weigh more heavily in favor of forgiveness, provided the petitioner is otherwise a suitable candidate for pardon.

3. Acceptance of responsibility, remorse, and atonement. The extent to which a petitioner has accepted responsibility for his or her criminal conduct and made restitution to its victims are important considerations. A petitioner should be genuinely desirous of forgiveness rather than vindication. While the absence of expressions of remorse should not preclude favorable consideration, a petitioner's

121 attempt to minimize or rationalize culpability does not advance the case for pardon. In this regard, statements made in mitigation (e.g., "everybody was doing it," or I didn't realize it was illegal") should be judged in context. Persons seeking a pardon on grounds of innocence or miscarriage of justice bear a formidable burden of persuasion.

4. Need for Relief. The purpose for which pardon is sought may influence disposition of the petition. A felony conviction may result in a wide variety of legal disabilities under state or federal law, some of which can provide persuasive grounds for recommending a pardon. For example, a specific employment-related need for pardon, such as removal of a bar to licensure or bonding, may make an otherwise marginal case sufficiently compelling to warrant a grant in aid of the individual's continuing rehabilitation. On the other hand, the absence of a specific need should not be held against an otherwise deserving applicant, who may understandably be motivated solely by a strong personal desire for a sign of forgiveness.

5. Official recommendations and reports. The comments and recommendations of concerned and knowledgeable officials, particularly the United States Attorney whose office prosecuted the case and the sentencing judge, are carefully considered. The likely impact of favorable action in the district or nationally, particularly on current law enforcement priorities, will always be relevant to the President's decision. Apart from their significance to the individuals who seek them, pardons can play an important part in defining and furthering the rehabilitative goals of the criminal justice system.

1-2.113 Standards for Considering Commutation Petitions

A commutation of sentence reduces the period of incarceration; it does not imply forgiveness of the underlying offense, but simply remits a portion of the punishment. It has no effect upon the underlying conviction and does not necessarily reflect upon the fairness of the sentence originally imposed. Requests for commutation generally are not accepted unless and until a person has begun serving that sentence. Nor are commutation requests generally accepted from persons who are presently challenging their convictions or sentences through appeal or other court proceeding.

The President may commute a sentence to time served or he may reduce a sentence, either merely for the purpose of advancing an inmate's parole eligibility or to achieve the inmate's release after a specified period of time. Commutation may be granted upon conditions similar to those imposed pursuant to parole or supervised release or, in the case of an alien, upon condition of deportation.

Generally, commutation of sentence is an extraordinary remedy that is rarely granted. Appropriate grounds for considering commutation have traditionally included disparity or undue severity of sentence, critical illness or old age, and meritorious service rendered to

122 the government by the petitioner, e.g., cooperation with investigative or prosecutive efforts that has not been adequately rewarded by other official action. A combination of these and/or other equitable factors may also provide a basis for recommending commutation in the context of a particular case.

The amount of time already served and the availability of other remedies (such as parole) are taken into account in deciding whether to recommend clemency. The possibility that the Department itself could accomplish the same result by petitioning the sentencing court, through a motion to reward substantial assistance under Rule 35 of the Federal Rules of Criminal Procedure, a motion for modification or remission of fine under 18 U.S.C. Section 3573, or a request for compassionate relief under 18 U.S.C. Section 3582(c)(1), will also bear on the decision whether to recommend Presidential intervention in the form of clemency. When a commutation request is based on the serious illness of the petitioner, transmission of the United States Attorney's response by facsimile in advance of mailing the original is always appreciated.

When a petitioner seeks remission of fine or restitution, the ability to pay and any good faith efforts to discharge the obligation are important considerations. Petitioners for remission also should demonstrate satisfactory post-conviction conduct.

On January 21, 1977, the President by Proclamation 4483 granted pardon to persons who committed nonviolent violations of the Selective Service Act between August 4, 1964 and March 28, 1973 and who were not Selective Service employees. Although a person who comes within the described class was immediately pardoned by the proclamation, the Pardon Attorney issues certificates of pardon to those within the class who were actually convicted of a draft violation and who make written application to the Department on official forms. When these applications are received by the Pardon Attorney, they are forwarded to the United States Attorney for the district in which the applicant was convicted to verify the facts of the case. The verification should be returned to the Pardon Attorney promptly.

123 APPENDIX 4

Executive Grant of Clemency – Roger Clinton

124 APPENDIX 5

Pardon Proclamation Following is the text of the proclamation by which President Gerald R. Ford pardoned President Nixon on September 8, 1974.1

Richard Nixon became the thirty-seventh President of the United States on January 20, 1969, and was re-elected in 1972 for a second term by the electors of forty-nine of the fifty states. His term in office continued until his resignation on August 9, 1974. Pursuant to resolutions of the House of Representatives, its Committee on the Judiciary conducted an inquiry and investigation on the impeachment of the President extending over more than eight months. The hearings of the committee and its deliberations, which received wide national publicity over television, radio, and in printed media, resulted in votes adverse to Richard Nixon on recommended articles of impeachment. As a result of certain acts or omissions occurring before his resignation from the office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Whether or not he shall be so prosecuted depends on findings of the appropriate grand jury and on the discretion of the authorized prosecutor. Should an indictment ensue, the accused shall then be entitled to a fair trial by an impartial jury, as guaranteed to every individual by the Constitution. It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office in the United States. Now, therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974. In witness whereof, I have hereunto set my hand this 8th day of September in the year of our Lord Nineteen Hundred Seventy Four, and of the independence of the United States of America the 199th.

1 The Congressional Quarterly Weekly Report, September 14, 1974. Page 2456. 125 APPENDIX 6

Transcript of Ford’s Pardon of Nixon Following is the text of President Ford’s September 8, 1974 statement pardoning former President Nixon.2

Ladies and gentlemen, I have come to a decision which I felt I should tell you, and all of my fellow American citizens, as soon as I was certain in my own mind and in my own conscience that it was the right thing to do. I have learned already in this office that the difficult decision always come to this desk. I must admit that many of them do not look at all the same as the hypothetical questions that I have answered freely and perhaps too fast on previous occasions. My customary policy is to try and get all the facts and to consider the opinions of my countrymen and to take counsel with my most valued friends. But these seldom agree, and in the end the decision is mine. To procrastinate, to agonize and to wait for a more favorable turn of events that may never come, or more compelling external pressures that may as well be wrong as right, is itself a decision of sorts and a weak course for a President to follow. I have promised to uphold the Constitution, to do what is right as God gives me to see the right, and to do the very best that I can for American. I have asked your help and your prayers not only when I became President, but many times since. The Constitution is the supreme law of our land and it governs our actions as citizens. Only the laws of God, which govern our consciences, are superior to it. As we are a nation under God, so I am sworn to uphold our laws with the help of God. And I have sought such guidance and searched my own conscience with special diligence to determine the right thing for me to do with respect to my predecessor in this place, Richard Nixon, and his loyal wife and family. Theirs is an American tragedy in which we all have played a part. It could go on and on and on, or someone must write “The End” to it. I have concluded that only I can do that. And if I can, I must. There are no historic or legal precedents to which I can turn in this matter, none that precisely fit the circumstances of a private citizen who has resigned the presidency of the United States. But it is common knowledge that serious allegations and accusations hang like a sword over our former President’s head, threatening his health, as he tries to reshape his life, a great part of which was spent in the service of this country and by the mandate of its people. After years of bitter controversy and divisive national debate, I have been advised and I am compelled to conclude that many months and perhaps more years will have to pass before Richard Nixon could obtain a fair trial by jury in any jurisdiction of the United States under governing decisions of the Supreme Court.

2 The Congressional Quarterly Weekly Report, September 14, 1974. Page 2455. 126 I deeply believe in equal justice for all Americans, whatever their station or former station. The law, whether human or divine, is no respecter of persons but the law is a respecter of reality. The facts as I see them are that a former President of the United States, instead of enjoying equal treatment with any other citizen accused of violating the law, would be cruelly and excessively penalized either in preserving the presumption of his innocence or in obtaining a speedy determination of his guilt in order to repay a legal debt to society. During this long period of delay and potential litigation, ugly passions would again be aroused, and our people would again be polarized in their opinions, and the credibility of our free institutions of government would again be challenged at home and abroad. In the end, the courts might well hold that Richard Nixon had been denied due process and the verdict of history would even more be inconclusive with respect to those charges arising out of the period of his presidency of which I am presently aware. But it is not the ultimate fate of Richard Nixon that most concerns me—though surely it deeply troubles every decent and every compassionate person. My concern is the immediate future of this great country. In this I dare not depend upon my personal sympathy as a longtime friend of the former President nor my professional judgment as a lawyer. And I do not. As President, my primary concern must always be the greatest good of all the people of the United States, whose servant I am. As a man, my first consideration is to be true to my own convictions and my own conscience. My conscience tells me clearly and certainly that I cannot prolong the bad dreams that continue to reopen a chapter that is closed. My conscience tells me that only I, as President, have the constitutional power to firmly shut and seal this book. My conscience says it is my duty, not merely to proclaim domestic tranquility, but to use every means that I have to ensure it. I do believe that the buck stops here, that I cannot rely upon public opinion polls to tell me what is right. I do believe that right makes might, and that if I am wrong 10 angels swearing I was right would make no difference. I do believe with all my heart and mind and spirit that I, not as President, but as a humble servant of God, will receive justice without mercy if I fail to show mercy. Finally, I feel that Richard Nixon and his loved ones have suffered enough, and will continue to suffer no matter what I do, no matter what we as a great and good nation can do together to make his goal of peace come true. Now, therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974. In witness whereof, I have hereunto set my hand this 8th day of September in the year of our Lord Nineteen Hundred Seventy Four, and of the independence of the United States of America the 199th.

127

128 APPENDIX 7

Nixon Pardon Articles List and Classification

DOC # DATE PUBLISHER TONE BYLINE/SOURCE TITLE PAGES TYPE 1 1974-09/09 New York Times 0 Herbers, John No Conditions Set 2 article 2 1974-09/09 New York Times 0 Crewdson, John M. Jaworski Won't Challenge Pardon, Spokesman Says 2 article 3 1974-09/09 New York Times 0 Holles, Everett R. Pain' Expressed 2 article 4 1974-09/09 New York Times 0 Montgomery, Paul L. Some Mixed Reactions in Foley Square 2 article 5 1974-09/09 New York Times 0 Schmeck, Harold M., Jr. Brooke Terms Decision Serious Mistake by Ford 1 article 6 1974-09/09 New York Times 0 Daniel, Clifton A Resignation for Conscience 1 article 7 1974-09/09 New York Times 0 Darnton, John Democrats Here Condemn Pardon 1 article 8 1974-09/09 New York Times 0 Special to NYT terHorst Quits Post To Protest Pardon 2 article 9 1974-09/09 New York Times -1 Editor The Failure of Mr. Ford 1 editorial 10 1974-09/09 New York Times 0 AP Eisenhowers Happy Over Ford's Action 1 article 11 1974-09/09 New York Times 0 Shabecoff, Philip Lawyer, 36, Is Liason for 2 Presidents 1 article 12 1974-09/09 Wall Street Journal 0 Lynoff, Mitchell & Albert Hunt Ford Pardons Nixon; Move on Watergate Jolts His Honeymoon 1 article 13 1974-09/09 Washington Post 0 Millus, Peter Ford Grants Nixon Full Pardon 2 article 14 1974-09/09 Washington Post 0 Cannon, Lou Nixon Aides Urged Pardon 2 article 15 1974-09/09 Washington Post 0 Scott, Austin & Marilyn Berger Hill Reactions Mixed 2 article 16 1974-09/09 Washington Post 0 Lardner, George, Jr. Not Consulted About Pardon, Jaworski Says 2 article 17 1974-09/09 Washington Post 0 Cohen, Richard TerHorst Quits in Protest 2 article 18 1974-09/09 Washington Post 0 Kiernan, Laura & Barbara Sagnier Many Local Observers Dismayed by Pardon of Nixon 1 article 19 1974-09/09 Washington Post 0 Robinson, Timothy & John Hanrahan Wide Criminal Probe of Nixon Was Under Way Before Pardon 1 article 20 1974-09/10 New York Times 0 Holles, Everett R. Clash on Wording 2 article 21 1974-09/10 New York Times 0 Shabecoff, Philip President Booed 2 article 22 1974-09/10 New York Times 0 Crewdson, John M. Jaworski Aide Resigning in Apparent Nixon Protest 1 article 23 1974-09/10 New York Times 0 Special to NYT World Comment on Pardon Mixed 1 article 24 1974-09/10 New York Times 0 Apple, R.W., Jr. Cost of Ford's Decision 1 analysis 25 1974-09/10 New York Times -1 Editor Pardon for What? 1 editorial 26 1974-09/10 New York Times 0 Editor Honorable Withdrawal 1 editorial 27 1974-09/10 New York Times 0 Wicker, Tom A New Kind of Cover-up 1 column 28 1974-09/10 New York Times 0 Baker, Russel; Pardon Me 1 column 29 1974-09/10 New York Times -1 Hechinger, Fred M. Nixon's 'Mistakes' 1 column 30 1974-09/10 Wall Street Journal 0 Editor Mr. Nixon Pardoned 1 editorial 31 1974-09/10 Washington Post 0 Kilpatrick, Carroll Nixon Pardon Stirs Outcry Against Ford 1 article 32 1974-09/10 Washington Post 0 Rich, Spencer & Richard L. Lyons Deomcrats Critize Pardon 1 article 33 1974-09/10 Washington Post 0 MacKenzie, John P. Pardon Sparks New Calls for Viet Amnesty 1 article 34 1974-09/11 New York Times 0 Herbers, John Ford Studying Pardons for Watergate Figures; Congress Chief Objects 2 article 35 1974-09/11 New York Times 0 Rosenbaum, David E. Plan Is Assailed in Both Parties 2 article 36 1974-09/11 New York Times 0 Shabecoff, Philip A Buchen Briefing 2 article 37 1974-09/11 New York Times 0 Ripley, Anthony Departure of 2 Lawyers Spurs Rumors on Status 1 article 38 1974-09/11 New York Times 0 AP Judge, Citing Ford, Goes Easy On A Man 1 article 39 1974-09/11 New York Times 0 AP Following Ford's Lead, Judg Frees 2 Offenders 1 article 40 1974-09/11 New York Times -1 Editor Nightmare Compounded 1 editorial 41 1974-09/12 New York Times 0 Naughton, James M. Congress Returns to Find Watergate Still a Burden 2 article 42 1974-09/12 New York Times 0 Special to NYT Pardon for 2 Aides Reportedly Sought in Last Nixon Days 2 article 43 1974-09/12 New York Times 0 Special to NYT Support For Ford Declines Sharply 2 article 44 1974-09/12 New York Times 0 Herbers, John Study' Is Denied 2 article 45 1974-09/13 New York Times 0 Herbers, John Ford Said to Bar Pretrial Pardons of Ex-Nixon Aides 2 article 46 1974-09/13 New York Times 0 Naughton, James M. Doar Says Pardon Can't Change Facts 1 article 47 1974-09/14 New York Times 0 Herbers, John Ford Aides Silent on Link of Pardon and Nixon Health 2 article 48 1974-09/14 New York Times 0 Wash Star News St. Clair Linked to a Plea By Haldeman for Pardon 1 article

Positive (1) 0 0.0% Neutral (0) 44 91.7% Negative (-1) 4 8.3% NET TONE -4

129 APPENDIX 8

Rich Pardon Articles List and Classification

DOC # DATE PUBLISHER TONE BYLINE/SOURCE TITLE PAGES TYPE 1 2001-01/21 New York Times 0 AP McDougal Gets Pardoned by Clinton 3 article 2 2001-01/21 New York Times 0 AP Biographic Sketches From Pardon List 7 article 3 2001-01/23 New York Times 0 McGeehan, Patrick Prosecutors Not Consulted by Clinton on a Pardon 2 article 4 2001-01/25 New York Times -1 Pardons on the Sly 2 editorial 5 2001-01/25 New York Times -1 Cowan, Alison Leigh & Raymond Bonner Lawyer Tells of His Pursuit of Pardon… 4 article 6 2001-01/26 New York Times 0 Cowan, Alison Leigh Some Used in Pardon Effort Were Unaware of Purpose 3 article 7 2001-02/16 New York Times 0 Glaberson, William States' Pardon Now Looked at in Starker Light 4 article 8 2001-02/18 New York Times 1 Clinton, William Jefferson My Reasons for the Pardons 4 editorial 9 2001-02/18 New York Times 0 Ho, David Clinton Defends Rich Pardon 3 article 10 2001-02/19 New York Times -1 AP Clinton Pardon Statement Questioned 3 article 11 2001-02/19 New York Times -1 Mr. Clinton's Explanation 2 editorial 12 2001-02/19 New York Times -1 Kahn, Joseph Clinton's Defense of Pardons Brings Even More Questions 4 article 13 2001-03/03 New York Times 0 Lewis, Anthony The Pardons in Perspective 2 commentary 14 2001-01/20 Washington Post 0 Miller, Bill Clinton Postpones Actions on Pardons 2 article 15 2001-01/21 Washington Post -1 Goldstein, Amy & Susan Schmidt Clinton's Last-Day Clemency Benefits 176 4 article 16 2001-01/22 Washington Post -1 Slevin, Peter & George Lardner Jr. Key to Presidential Pardon is Access 3 article 17 2001-01/25 Washington Post 1 Love, Margaret Colgate (Pardon Attny) Rescuing the Pardon Power 2 commentary 18 2001-01/26 Washington Post 0 Quinn, Jack A Pardon Deserved 2 commentary 19 2001-01/28 Washington Post 0 Grimaldi, James V. & Robert O'Harrow Jr Fugitive's Pardon Ended 17-Year Effort 5 article 20 2001-02/15 Washington Post -1 Criminal Probe of Pardon Has Begun, Sources Say 2 article 21 2001-01/26 AP -1 Yost, Pete Rich's Wife Denies Money-Pardon Link 3 article 22 2001-01/26 AP -1 Yost, Pete Clinton Pardon of Fugitive Decried 2 article 23 2001-02/14 AP -1 Holland, Jessie J. Hearing Continues on Rich Pardon 3 article 24 2001-03/13 AP -1 AP Justice Department to Study Pardons 2 article 25 2001-01/26 Boston Globe -1 Staff Pardon him not 2 editorial 26 2001-01/26 Chicago Tribune -1 Promiscuous Use of the Pardon 2 editorial 27 2001-01/21 Cincinnati Enquirer 0 Solomon, John Clinton Pardons 140, including his brother 1 article 28 2001-05/29 Cincinnati Enquirer 1 Jacoby, Jeff Ford's toughest call 1 commentary 29 2001-02/14 CNN.com -1 McCaleb, Ian Christopher Senators hear details of Clinton's last-minute pardon of Rich 4 article 30 2002-03/14 Houston Chronicle -1 Hedges, Michael Report: Roger Clinton's pardon efforts lucrative 3 article 31 2001-03/19 Jurist.law.pitt.edu 1 Sutin, L. Anthony If Only You Had Asked: Trust the Pardon Review Process 5 commentary 32 2001-01/28 LA Times -1 Peterson, Jonathan & Lisa Getter Timing of Final Clinton Pardons Raises Questions 4 article 33 2001-01/25 Newsday -1 Clinton Pardons: A Thumb on the Scales of Justice 2 editorial 34 2001-01/25 Newsday 1 Ackman, Dan The Power to Pardon Is a President's Right 3 commentary 35 2001-01/26 OregonLive -1 The people's 'sense of smell' 2 editorial 36 2001-01/26 Reuters 0 Reuters Lawyer Defends Pardon of Fugitive Billionaire 2 article 37 2001-01/29 Reuters 0 Charles, Deborah Bush Will Not Try to Reverse Clinton Pardons 2 article 38 2001-02/14 Reuters -1 Whitesides, John Pardon Attorney Says He Learned About Rich Case Late 3 article 39 2002-06/20 Reuters -1 Reuters Government Closes Clinton N.Y. Clemency Case 1 article 40 2001-03/26 The Nation -1 Pardons in Perspective 2 editorial 41 2001-01/26 The Star-Ledger (NJ) -1 Farmer, James The Sorry Tale of Bill's Pardons 3 commentary

Positive (1) 5 12.2% Neutral (0) 13 31.7% Negative (-1) 23 56.1% NET TONE -18

130 APPENDIX 9

Petition for Pardon After Completion of Sentence

131

Petition for Pardon After Completion of Sentence

Please read the accompanying instructions carefully before completing the application. Type or print the answers in ink. Each question must be answered fully, truthfully, and accurately. If the space for any answer is insufficient, you may complete the answer on the optional continuation page or on a separate sheet of paper and attach it to the petition. You may attach any additional documentation that you believe is relevant to your petition. The submission of any material, false information is punishable by up to five years’ imprisonment and a fine of not more than $250,000. 18 U.S.C. §§ 1001 and 3571.

To The President of the United States:

The undersigned petitioner prays for a pardon and in support thereof states as follows:

1. Full name: ______First Middle Last

Address: ______Number Street City State Zip Code

Telephone Number: ______Social Security No. ______(area code)

Date and place of birth: ______

Sex: ______Height: ______Weight: ______Hair Color: ______Eye Color: ______

State in full every other name by which you have been known, including the name under which you were convicted, the reason for your use of another name, and the dates during which you were so known (i.e., include your maiden name, name by a former marriage, aliases, and nicknames).

______Are you a United States citizen? If you are not a U.S. citizen, state your nationality and your alien registration number. If you are a naturalized U.S. citizen, state the date and place of your naturalization.

______Have you ever applied for a presidential pardon before? If yes, state the date you applied for pardon, and the date you were notified of the final disposition of the petition.

______United States Department of Justice January 2002 Office of the Pardon Attorney Washington, D.C. 20530

Offense(s) For Which Pardon Is Sought

Under the Rules Governing Petitions for Executive Clemency, a minimum waiting period of five years after completion of sentence is required before you become eligible to apply for a presidential pardon. The waiting period begins on the date of release from confinement. If the conviction resulted in probation or a fine with no term of imprisonment, the waiting period begins on the date of sentencing. Please see paragraph 3 of the Information and Instructions on Pardons.

2. Petitioner was convicted on a plea of ______in the United States District (guilty, not guilty, nolo contendere)

Court for the ______District of ______of the crime of: (Northern, Western, etc.) (identify state)

______(State specific offense; provide citation of statute(s) violated, if known)

and was sentenced on ______, ______to imprisonment for ______, (month/day) (year)

probation/supervised release for ______, a fine of $ ______, and restitution

of $ ______. Petitioner was ______years of age when the offense was committed.

3. Petitioner began service of the sentence of ( imprisonment probation) on ______, ____; (month/day) (year)

was released on ______, ______from ______; began service of (month/day) (year) (Federal institution)

probation/supervised release on ______, ______; and completed the sentence on (month/day) (year)

______, ______. Petitioner ( did did not) appeal the conviction. (month/day) (year)

4. Indicate the date(s) on which the fine or restitution was paid. If the fine or restitution has not been paid in full, explain why, and state the remaining balance.

______5. If you appealed your conviction or sentence, provide the date of the decision(s) by the Court of Appeals and, if applicable, the Supreme Court. Also provide citations to any published judicial opinion(s), and a copy of any unpublished opinion(s), if available.

______Petition for Pardon After Completion of Sentence Page 2

6. Provide a complete and detailed account of the offense for which you seek pardon. You are expected to describe in your own words the relevant factual circumstances of the offense. Do not simply repeat the description of the offense contained in the indictment or presentence report, or rely on criminal code citations alone. If the conviction resulted from a plea agreement, you should describe the full extent of your involvement in the criminal conduct, in addition to the charge(s) to which you pled guilty. If you need more space, use the optional continuation page.

______Petition for Pardon After Completion of Sentence Page 3

Prior and Subsequent Criminal Record

7. Aside from the offense for which you seek pardon, have you ever been arrested, taken into custody, held for investigation or questioning, charged by any law enforcement authority, or convicted in any court, either as a juvenile or an adult, for any other incident?

For each such incident, state the following: the date, the nature of the charge, the relevant facts, the law enforcement authority involved, the location, and the disposition of the incident. You must list every violation, including traffic violations that resulted in an arrest or criminal charge, such as driving under the influence. You are expected to describe in your own words the relevant factual circumstances of each incident. Any omission will be considered a falsification. If you need more space, use the optional continuation page.

______

______Petition for Pardon After Completion of Sentence Page 4

Biographical Information

8. Current marital status: Never Married Married Divorced Widowed Separated For each marriage, state the following: name of spouse, date and place of spouse’s birth, date and place of marriage, and, if applicable, date and place of divorce, and current or last known address and telephone number of your current and each former spouse. If you need more space, use the optional continuation page.

______name of spouse date/place of birth

______full address, including zip code telephone number, including area code

______date/place of marriage date/place of divorce

______name of spouse date/place of birth

______full address, including zip code telephone number, including area code

______date/place of marriage date/place of divorce

9. (a) List your children by name and furnish the date and place of birth for each: If you have no children, indicate that the question is not applicable. If you need more space, use the optional continuation page.

______name of child date/place of birth

(b) If you have minor children, but do not have custody of one or more of them, indicate whether and to whom you pay child support, whether your payments are current, and, if not, the reason for your failure to pay and any agreement you have made to satisfy your payment obligation.

______(c) If the other parent of any child listed above is not your spouse or former spouse, identify the child, and state the name, address, and telephone number of the other parent.

______Petition for Pardon After Completion of Sentence Page 5

10. List the complete address of all schools you have attended since your conviction, beginning with the most recent and working backward. Indicate the type of degree or diploma received or anticipated, and give the name of an instructor, counselor, or other school official who knows you well. If you need more space, use the optional continuation page. If you have not attended any schools since your conviction, indicate that the question is not applicable.

School From (month/year) To (month/year)

Number and Street Degree Month/year awarded

City State Zip Code

Name of school official Telephone number of school official

Residences

11. Provide the full address of every place you have lived since the conviction or release from incarceration, beginning with the present and working backward. All time periods must be accounted for. List the physical location of your residence; do not use a post office box as an address. If you lived in an apartment complex, list your apartment number. If you need more space, use the residence continuation page.

Date you moved to present address Number and Street Apartment Number (month/year):

City State Zip Code

From (month/year): Number and Street Apartment Number

To (month/year): City State Zip Code

From (month/year): Number and Street Apartment Number

To (month/year): City State Zip Code

From (month/year): Number and Street Apartment Number

To (month/year): City State Zip Code

From (month/year): Number and Street Apartment Number

To (month/year): City State Zip Code

______Petition for Pardon After Completion of Sentence Page 6

Employment History

12. List all periods of employment and unemployment since the conviction or release from incarceration, beginning with the present and working backward. All time periods must be accounted for. List all full and part-time work, self-employment, and any periods of unemployment. For any period of unemployment, indicate your means of support. For additional employments, use the employment history continuation page.

Present Employer Telephone (include area code)

Date you began this employment Number and Street (month/year):

City State Zip Code

Type of business Position Supervisor Supervisor’s telephone number

Employer Telephone (include area code)

Began (month/year): Number and Street

Ended (month/year): City State Zip Code

Type of business Position Supervisor Supervisor’s telephone number

Employer Telephone (include area code)

Began (month/year): Number and Street

Ended (month/year): City State Zip Code

Type of business Position Supervisor Supervisor’s telephone number

(a) Since your conviction, have you been fired or left a job following allegations of misconduct or unsatisfactory job performance?

(b) Have you ever failed to list your conviction, or any other arrest or conviction, on any employment or other application where such information was requested? If you answered yes to either of the above questions, provide the employer’s name, address and telephone number, and explain fully below. If you need more space, use the optional continuation page.

______

______Petition for Pardon After Completion of Sentence Page 7

Substance Abuse and Mental Health Information

13. (a) Have you ever used any illegal drug or abused prescription drugs or alcohol? If yes, identify the drugs used, the dates of drug or alcohol abuse, and the frequency of such use. If you need more space, use the optional continuation page.

______(b) Have you ever been involved in the illegal manufacture, sale, or distribution of drugs, other than the offense for which you seek pardon? If yes, provide complete details and dates of your involvement. If you need more space, use the optional continuation page.

______(c) Have you ever sought or participated in counseling, treatment, or a rehabilitation program for drug use or alcohol abuse? If yes, specify the dates of treatment or counseling, and provide the full name, address, and telephone number of the treatment facility and of the doctor, counselor or other treatment provider.

______

______Petition for Pardon After Completion of Sentence Page 8

(d) Have you ever consulted with a mental health professional (psychiatrist, psychologist, or counselor), or with another health care provider, concerning a mental health- related condition? If yes, specify the nature of the condition, the dates of treatment, the type of treatment, and the full name, address, and telephone number of the counselor or treatment provider.

______

Civil and Financial Information

14. (a) Are you currently in default or delinquent in any way in the payment or discharge of any debt or financial obligation imposed upon you? If yes, state the amount of the debt, the full name, address, and telephone number of the creditor, the reason for the failure to pay, and the terms of any agreement you have made to satisfy the obligation. If you need more space, use the optional continuation page.

______(b) Have any liens (including federal or state tax liens) been filed against you? If yes, state the amount of the lien, the full name, address, and telephone number of the lien holder, the reason the lien was imposed, the current status of the lien, and the terms of any agreement you have made to satisfy the obligation. If you need more space, use the optional continuation page.

______Petition for Pardon After Completion of Sentence Page 9

(c) Have you ever been named as a party in a civil lawsuit? If yes, state the full name, address, and telephone number of any other party to the lawsuit, the court in which it was filed, the case number, the nature of the dispute, and the final disposition, including the terms of any settlement agreement. If you need more space, use the optional continuation page.

______(d) Have you ever filed for the discharge of your debts in bankruptcy? If yes, state the court in which the petition was filed, the case number, the amount of debt sought to be discharged, the final disposition of the action, and the date of disposition. If you need more space, use the optional continuation page.

______(e) Do you have pending any judicial or administrative proceedings with the federal, state, or local governments? If yes, state the full name, address and telephone number of the relevant authority involved, the jurisdiction in which the proceeding is pending, the case number, the nature of the dispute, and the current status of the matter. If you need more space, use the optional continuation page.

______

______Petition for Pardon After Completion of Sentence Page 10

Military Record

15. (a) Have you ever served in the armed forces of the United States?

Dates of service: ______Branch(es): ______

Serial number: ______Type of discharge: ______

Decorations (if any): ______

(b) If you were other than honorably discharged, describe in detail the factual circumstances surrounding your discharge. If you need more space, use the optional continuation page. Attach a copy of your separation papers (Form DD-214), if available.

______(c) While serving in the armed forces, did you receive non-judicial punishment, or were you the defendant in any court-martial? If yes, state fully the nature of the charge, the relevant facts, the disposition of the proceedings, the date thereof, and the name and address of the authority in possession of the records thereof. If you were convicted of an offense by court-martial, with respect to each conviction, provide a copy of the court-martial promulgating order and the information that is required in questions 2 through 6 of this application. If you need more space, use the optional continuation page.

______Petition for Pardon After Completion of Sentence Page 11

Civil Rights and Occupational Licensing

16. Have you ever applied for the restoration of your state civil rights (i.e., a state pardon, a certification of restoration of civil rights, or a certificate of discharge)? If yes, indicate whether the application was granted or denied, and attach a copy of your application and the document(s) evidencing the state’s action.

______17. (a) Have you ever applied for the removal of your state firearms disabilities? If yes, indicate whether the application was granted or denied, and attach a copy of your application and the document(s) evidencing the state’s action.

______(b) Have you ever applied for the removal of your federal firearms disabilities? If yes, indicate whether the application was granted or denied, and attach a copy of your application and the document(s) evidencing the federal government’s action.

______18. (a) Have you ever been denied any type of business or professional license, had any such license revoked, or had reinstatement of any such license denied? If yes, attach a copy of the document(s) evidencing the action, including your application and any explanation of the reasons for the action. If not available, provide the name, address, and telephone number of the authority taking the action, the nature of the license, the disposition of your request, and the date of disposition.

______(b) Have you ever been granted any type of business or professional license or received the reinstatement of any such license that had been revoked? If yes, attach a copy of the document(s) evidencing the action, including your application and any explanation of the reasons for the action. If not available, provide the name, address, and telephone number of the authority taking the action, the nature of the license, the disposition of your request, and the date of disposition.

______

______Petition for Pardon After Completion of Sentence Page 12

Charitable and Community Activities

19. Describe any charitable or civic activities in which you have been engaged, or other contributions you have made to the community, since your conviction. In this regard, you may include the names of any organizations in which you have participated, the time periods of your participation, your role in these activities, and the name, address, and telephone number of a person associated with each organization who is familiar with your involvement. If you need more space, use the optional continuation page.

______

______Petition for Pardon After Completion of Sentence Page 13

Reasons for Seeking Pardon

20. State your reasons for seeking a pardon. Please refer to paragraph 4 of the Information and Instructions on Pardons, which indicates that a pardon is ordinarily a sign of forgiveness, not vindication. If you need more space, use the optional continuation page.

______

______Petition for Pardon After Completion of Sentence Page 14

Certification and Personal Oath

I hereby certify that all answers to the above questions and all statements contained herein are true and correct to the best of my knowledge, information, and belief. I understand that any intentional misstatements of material facts contained in this petition may cause adverse action on my petition for pardon, in addition to subjecting me to any other penalties provided by law.

In petitioning the President of the United States for pardon, I do solemnly swear that I will be law-abiding and will support and defend the Constitution of the United States against all enemies, foreign and domestic, and that I take this obligation freely and without any mental reservation whatsoever, So Help Me God.

Respectfully submitted this _____ day of ______, ______. (month) (year)

______(signature of petitioner)

Subscribed and sworn before me this ______day of ______, ______. (month) (year)

______(SEAL) Notary Public

My commission expires: ______

______Petition for Pardon After Completion of Sentence Page 15

Continuation Page for Petition for Pardon After Completion of Sentence

Residences

From (month/year): Number and Street Apartment Number

To (month/year): City State Zip Code

From (month/year): Number and Street Apartment Number

To (month/year): City State Zip Code

From (month/year): Number and Street Apartment Number

To (month/year): City State Zip Code

From (month/year): Number and Street Apartment Number

To (month/year): City State Zip Code

From (month/year): Number and Street Apartment Number

To (month/year): City State Zip Code

From (month/year): Number and Street Apartment Number

To (month/year): City State Zip Code

From (month/year): Number and Street Apartment Number

To (month/year): City State Zip Code

______Petition for Pardon After Completion of Sentence

Continuation Page for Petition for Pardon After Completion of Sentence

Employment History

Employer Telephone (include area code)

Began (month/year): Number and Street

Ended (month/year): City State Zip Code

Type of business Position Supervisor Supervisor’s telephone number

Employer Telephone (include area code)

Began (month/year): Number and Street

Ended (month/year): City State Zip Code

Type of business Position Supervisor Supervisor’s telephone number

Employer Telephone (include area code)

Began (month/year): Number and Street

Ended (month/year): City State Zip Code

Type of business Position Supervisor Supervisor’s telephone number

Employer Telephone (include area code)

Began (month/year): Number and Street

Ended (month/year): City State Zip Code

Type of business Position Supervisor Supervisor’s telephone number

______Petition for Pardon After Completion of Sentence

Optional Continuation Page for Petition for Pardon After Completion of Sentence

Answers to Other Questions

Question # Response: ______

______Petition for Pardon After Completion of Sentence

Optional Continuation Page for Petition for Pardon After Completion of Sentence

Answers to Other Questions

Question # Response: ______

______Petition for Pardon After Completion of Sentence

CHARACTER AFFIDAVIT on behalf of

______(print or type name of petitioner)

In support of the application of the above named petitioner to the President of the United

States for pardon, I, , (Print or type name of affiant)

residing at , Number Street City State Zip Code

______, whose occupation is , T elephone No. (include area code)

certify that I have personally known the petitioner for years. Except as otherwise indicated below, petitioner has behaved since the conviction in a moral and law-abiding manner. My knowledge of petitioner's reputation, conduct and activities, including whether the petitioner has been arrested or had any other trouble with public authorities and has been steadily employed, is as follows:

I do solemnly swear that the foregoing information is true and correct to the best of my knowledge, information, and belief.

______(Signature of Affiant)

Subscribed and sworn to before me this day of , . (month) (year)

(SEAL) Notary Public: ______

My commission expires: ______

Petition for Pardon after Completion of Sentence CHARACTER AFFIDAVIT on behalf of

______(print or type name of petitioner)

In support of the application of the above named petitioner to the President of the United

States for pardon, I, , (Print or type name of affiant)

residing at , Number Street City State Zip Code

______, whose occupation is , T elephone No. (include area code)

I do solemnly swear that the foregoing information is true and correct to the best of my knowledge, information, and belief.

______(Signature of Affiant)

Subscribed and sworn to before me this day of , . (month) (year)

(SEAL) Notary Public: ______

My commission expires: ______

Petition for Pardon after Completion of Sentence CHARACTER AFFIDAVIT on behalf of

______(print or type name of petitioner)

In support of the application of the above named petitioner to the President of the United

States for pardon, I, , (Print or type name of affiant)

residing at , Number Street City State Zip Code

______, whose occupation is , T elephone No. (include area code)

I do solemnly swear that the foregoing information is true and correct to the best of my knowledge, information, and belief.

______(Signature of Affiant)

Subscribed and sworn to before me this day of , . (month) (year)

(SEAL) Notary Public: ______

My commission expires: ______

Petition for Pardon after Completion of Sentence Authorization for Release of Information

Carefully read this authorization to release information about you, then complete, sign and date it in ink.

I authorize any investigator, special agent, or other duly accredited representative of the Federal Bureau of Investigation, the Department of Defense, and any other authorized Federal agency, to obtain any information relating to my activities from schools, residential management agents, employers, criminal justice agencies, retail business establishments, courts, or other sources of information. This information may include, but is not limited to, my academic, residential, achievement, performance, attendance, disciplinary, employment history, criminal history, arrest, conviction, medical, psychiatric/psychological, health care, and financial and credit information.

I understand that, for financial or lending institutions and certain other sources of information, a separate specific release may be needed (pursuant to their request or as may be required by law), and I may be contacted for such a release at a later date.

I further authorize the Federal Bureau of Investigation, the Department of Defense, and any other authorized Federal agency, to request criminal record information about me from criminal justice agencies for the purpose of determining my suitability for a government benefit.

I specifically authorize the Office of the Pardon Attorney to receive a copy of the presentence investigation report, if any, prepared in connection with the offense for which I am seeking pardon.

I authorize custodians of records and sources of information pertaining to me to release such information upon request of the investigator, special agent, or other duly accredited representative of any Federal agency authorized above regardless of any previous agreement to the contrary. I understand that the information released by records custodians and sources of information is for official use by the Federal Government only for the purposes of processing my application for pardon, and may be redisclosed by the Government only as authorized by law.

Copies of this authorization that show my signature are as valid as the original release signed by me. This authorization is valid for three (3) years from the date signed.

Signature (sign in ink)

Full Name (type or print legibly) Date Signed

Other Names Used

Street Address

City State Zip Code

Home Telephone Number (include area code) Social Security Number

______Authorization for Release of Information January 2002

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164 LEGAL CASES

Biddle v. Perovich, 274 U.S. 480 (1927). Burdick v. United States, 236 U.S. 79 (1915). Carlesi v. New York, 233 U.S. 51 (1914). Garland, Ex parte, 4 Wallace 333 (1867). Grossman, Ex parte, 267 U.S. 87 (1925) In Re Elliot Abrams, 689 A.2d 6 (1997). Murphy v. Ford, 390 F. Supp. 1372 (1975). Schick v. Reed, 419 U.S. 256 (1974). United States v. Klein, 80 U.S. 128 (1871). United States v. Nixon, 418 U.S. 683 (1974) United States v. Wilson, 32 U.S. 150 (1833) Wells, Ex parte, 15 L. Ed. 421, 423 (1855).

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